244 Opinion of the Court its plant by reason of action of the Army. Where removal is made necessary by the wrongful act of the defendant, as it was in this case, plaintiff is entitled to recover the expense of removal. United States 78 (10) Same; work continued during removal; additional expense incurred.— Where it is shown that plaintiff would have eventually had to move and bear the expense of moving, it is further shown that, in furtherance of the defense effort, plaintiff continued its operations during the time of moving and was thereby put to additional expense. The evidence shows that the cost of moving was $18,095.73. Based on complete stoppage of work the reasonable cost of the move would have been $9,142. Because of the necessity of uninterrupted service and delivery of concrete during the move, plaintiff incurred additional expense of $8,953.73, payment of which is recommended. United States 78 (10) Mr. Harold Leventhal for the plaintiff. Messrs. Ginsburg, Leventhal and Brown and Messrs. Burke, Burke and Smith were on the brief. Mr. Howard O. Sigmond, with whom was Mr. Acting Assistant Attorney General J. Edward Williams, for the defendant. LARAMORE, Judge, delivered the opinion of the court: This is a congressional reference case referred to the Court of Claims by Senate Resolution 224, 82d Congress, 1st Session, with instructions to proceed in accordance with sections 1492 and 2509 of Title 28 of the United States Code.1 Pursuant to the aforementioned reference the plaintiff has filed its petition in this court seeking to recover the amount it spent in moving its concrete mixing plant. 1 Sec. 1492 reads as follows: "The Court of Claims shall have jurisdiction to report to either House of Congress on any bill referred to the court by such House, except a bill for a pension, and to render judgment if the claim against the United States represented by the referred bill is one over which the court has jurisdiction under other Acts of Congress." Sec. 2509 reads as follows: "Whenever any bill, except for a pension, is referred to the Court of Claims by either House of Congress, such court shall proceed with the same in accordance with its rules and report to such House, the facts in the case, including facts relating to delay or laches, facts bearing upon the question whether the bar of any statute of limitation should be removed, or facts claimed to excuse the claimant for not having resorted to any established legal remedy. "The court shall all report conclusions sufficient to inform Congress whether the demand is a legal or equitable claim or a gratuity, and the amount, if any, legally or equitably due from the United States to the claimant." Opinion of the Court 130 C. Cls. From 1941 through 1943 plaintiff, as a materials supplier, furnished transit-mixed concrete to the prime contractor who had undertaken the building of Willow Run Bomber Plant. Originally it supplied this demand from its plant in Ann Arbor, Michigan, which is approximately 14 miles from the site of the Willow Run Bomber Plant. In order to facilitate deliveries to Willow Run plaintiff secured a site for its transit-mixed concrete plant near Willow Run by lease dated May 31, 1941, from one Wiard for a term beginning May 10, 1941. The lease provided in part: The term of this lease shall be one year or the length of time required for the construction and completion of the so-called Bomber Plant, now being erected for the Ford Motor Company on the south side of Ecorse Road, whichever is the longer. The party of the second part is to remove all construction both above and below the ground and to place in as near the condition originally found as is possible including reseeding. The fences are to be reset. Pursuant to the lease, the plaintiff corporation erected a concrete mixing plant on the new site, which we will refer to as Site 1. Said plant was portable, although certain facilities used in conjunction therewith were fixed installations. In November of 1941 the Michigan State Highway Department undertook to construct access roads to the bomber plant. It notified plaintiff by letter dated November 19, 1941 that Site 1 was being purchased by the state. The letter reads in part as follows: We have been notified that you are leasing property in Washtenaw County from Lyman E. and Florence P. Wiard, which property is described as follows: The Michigan State Highway Department is purchasing this property from Mr. and Mrs. Wiard for highway purposes in the vicinity, and as part of the consideration it has been agreed that your monthly payments on the lease are to be made to Mr. and Mrs. Wiard until May 10, 1942. If it is necessary for you to use the property after May 10, 1942, payments should be made to the Michigan State Highway Department. 244 Opinion of the Court Will you please acknowledge receipt of this notice by signing in the space provided below, returning the signed copy of the letter to this office. The letter was acknowledged by plaintiff. On January 6, 1942, the State of Michigan filed a condemnation suit to secure possession of land needed for the proposed extension of the highway system, including the land occupied by plaintiff as Site 1. The Highway Department notified the plaintiff of the necessity of moving from Site 1 by a letter dated January 16, 1942. The state was unable to obtain possession of all of the necessary rights-of-way within the time required by the highway construction program, without the assistance of the Federal Government under the Defense Highway Act, 55 Stat. 765. On January 30, 1942, the Highway Department requested the Federal Government to secure immediate possession and title on behalf of the state of the additional land, including land hereafter referred to as Site 2. The United States condemned the land and was reimbursed by the state for the cost of the acquisition. The United States did not deliver a deed for the property to the State of Michigan until September of 1945. In May 1942 the state and plaintiff entered into an oral agreement whereby plaintiff moved to Site 2, furnished by the State of Michigan, and the state reimbursed plaintiff $8,498.39 for its moving expenses from Site 1 to Site 2. The oral arrangements provided that the occupancy of Site 2 by plaintiff would be on the same rental and for the same terms as the lease plaintiff had for Site 1. Plaintiff paid the stipulated rent to the Highway Department until October 10, 1943. In July 1942, the Army requested and received authority to use the area including Site 2 for a temporary hospital. The state was aware of plaintiff's occupancy at the time but apprehended no potential conflict between the uses. Pursuant to this authority the Army constructed a temporary hospital on Site 2. Opinion of the Court 130 C. Cls. Difficulties arose from the simultaneous use of Site 2 by plaintiff's plant and the Army's temporary hospital. The Army complained that the noise from plaintiff's plant disturbed the hospital patients. Plaintiff was willing to vacate Site 2 if the Army would reimburse its costs of so doing. The dispute was brought to the attention of the Highway Department of the State of Michigan which attempted to explain the situation to the Army by letter dated February 8, 1943, reading in part as follows: Second, It is apparent that two different permissions were given concerning this property, and that in the matter of the presence of the Ann Arbor Construction Company's buildings on the property, these two permissions overlap and are inconsistent. The permission given to the Army Air Corps to use the Area for contonment [sic] purposes was promised in a letter of July 15, 1942, written by State Highway Commissioner Kennedy to Lieutenant Colonel F. I. Kennedy, C. E. Division Real Estate Director, Chicago, and covers the entire area between old Ecorse Road, Wiard Road, the Ford Railroad spur, and our new Expressway on the north. However, prior to this by a matter of several months, the Chief Engineer of the State Highway Department, learning that the Ann Arbor Construction Company was occupying property on the west side of Wiard Road under written lease and that it was directly in line of the Expressway, required that Company to move to the Foster property on the east side of Wiard Road, and agreed that they might remain thereon until the completion of the Bomber Plant. That Company's rent is paid to May 10, 1943. This was an authoritative commitment by the Highway Department and it appears to me that the later permission to Lieutenant Colonel Kennedy in July 1942, is subject to the prior rights granted the Ann Arbor Construction Company by the Highway Department. Now as to the practical solution of this matter, I believe that the Ann Arbor Construction Company is getting very close to the end of its operations at that point and will vacate as soon as this time is at hand. Whether that will be before or after March 1, 1943, I have not yet been able to ascertain; but the Company has played a rather vital part in the furtherance of the project, is setting there on the strength of valid permis 244 Opinion of the Court sion from this Department, and in all equity should not be disturbed in carrying out the last few weeks of its activities. I am sure that they will cooperate, as they have always done in the past, and that the entire matter will clear itself up in friendly fashion. I am seeking expression from Mr. Osgood of that Company as to the earliest date when he can remove whereupon the land will be available for your use. Since his plant occupies only a small portion at the extreme northeast corner, there certainly will be no objection to your occupying and using the remainder of the area at once. The discord continued between plaintiff and the Army over arrangements for plaintiff to vacate Site 2. Plaintiff was advised in writing by the Army on July 14, 1943, that it would deny plaintiff access to Site 2 unless by August 15 plaintiff submitted a certificate from responsible Federal authority that it was performing work essential to the war effort and to secure a pass to permit it to come within the enclosure. Later the Army extended to October 1, 1943, the date by which plaintiff was to complete its evacuation of Site 2. Between August and October 1943 plaintiff moved its plant from Site 2 and by January 22, 1944, had reestablished it at a location in Ypsilanti, Michigan, which is referred to as Site 3. Shortly after plaintiff moved its plant from Site 2 the Army moved its hospital from Site 2 to another location on the airport at Willow Run. Willow Run was substantially completed as of June 12, 1943 and had been in actual production since 1942. However, plaintiff continued to the end of 1943 to furnish concrete for the construction then underway of additional structures included in the original plans for Willow Run. After October 1, 1943, plaintiff's deliveries of concrete were made from its production at Site 3. The agreement under which plaintiff occupied Site 2 had no market value over and above the agreed rental. There was at the time an availability of alternate sites in greater proximity to Willow Run than Site 3. The evidence does not disclose why plaintiff chose Site 3 in preference to a site |