The opinion
Mellott,
concurring in part and dissenting in part: While I concur in the holding of the majority that the prior decision of the Board is res adjudícala as to the value of the lots in the improved sections of the cemetery, I must respectfully dissent from the holding that it is not also res adjudicata as to the lots in the unimproved sections.
The record in the prior proceedings indicates that the Board considered the value of all of petitioner’s cemetery property to be a relevant fact in determining the issue before it. This is evident not only from the findings, part of which are set out above, but also from the opinion of the Board. Therein it was said: “We also think that some consideration should be given to the undisputed fact that many years must pass before petitioner’s property will be sold out. Petitioner estimates the period at 45 years from March 1, 1913; the respondent uses a 65 year period. Whichever period is nearer right, it is plain that the petitioner must wait a considerable period of time before it realizes anything from a part of its property * * This statement apparently had reference, at least in part, to the unimproved sections of the cemetery. That it was so construed by the parties is indicated by the computation filed by the respondent, the essence of which is shown in the following schedule:
sq. ft. Total area of cemetery March 1, 1913_ 10, 912,825
Deduct: Sq. ft.
Portion devoted to roads, walks, etc. prior to March 1, 1913_ 1, 732, 308⅜
Lands sold prior to March 1,1913_ 4, 222, 745
- 5, 955,053 V2
Lands unsold March 1, 1913 (including 1,411,354 sq. ft. unimproved)- 4,957,771 ½
*829 Deduct, per Board’s findings: sq. ft.
Waste land_ 150,150
Lands estimated and found to be necessary for needed drives, walks, etc- 758, 743 sq. ft.
- 908,893
Total unsold improved and unimproved land__ 4, 048,878½
March 1, 1013 value — 4,957,771% x $1.55_• $6,275,761.68
Deduct: Value recovered for years 1913 to 1928, incl_ 1, 904, 353. 98
Unreeovered value January 1, 1929_ 4,371,407. 70
In the prior proceeding it was found that the cost of making the necessary improvements in the unimproved sections would be “from 8 cents to 20 cents a square foot.” Since petitioner is relying upon the value determined in that proceeding, probably the most unfavorable estimate of cost should be used. As a matter of fact petitioner inferentially concedes that the 20-cent figure should be used. This would result in a holding, which I think should be made, that the March 1, 1913, value of petitioner’s improved property was, as determined by the majority, $1.55 per square foot and its unimproved property $1.35 per square foot.
Leech agrees with the above.