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105 C. Cis. Reporter's Statement of the Case 12. At the time of the conference of Reynolds with Miller, referred to in the preceding finding, the Narragansett Bay Oyster Company was liquidating its holdings north of Quonset Point and plaintiff, knowing the character of those oyster grounds and regarding them highly, was anxious to obtain them. In making the purchase, which was consummated on April 2, 1940, plaintiff took into consideration the possibility that those grounds might not be usable for more than two or three years on account of the probability of the development of a naval air station at that place within that time. However, plaintiff desired grounds on which to move its oysters from the beds south of Quonset Point which were being interfered with by the Government operations in that area and also a place in which to place the oysters which were being moved from its propagating beds in Connecticut and considered that if it could get a growth of two years on these beds north of the Point before being required to move, it would provide a "port in a storm".

On April 2, 1940, plaintiff purchased the leases on the grounds north of Quonset Point referred to above from the Narragansett Bay Oyster Company for $7,000, such area consisting of 605.4 acres in Section 136-A. These grounds were immediately north of Quonset Point and more than half of them were opposite the coast and in the area of the prospective naval air station development which began in July 1940. April 11, 1940, plaintiff sold 102.4 acres in the north part thereof for $1,183.74, the same price per acre at which they were purchased, thus leaving plaintiff with 503 acres at a cost of $5,816.26, that is, an average cost of $11.56 per acre. In addition to the purchase price, plaintiff was required to pay to the State of Rhode Island the usual stated rental prices of $2.50 to $5 per acre depending on the depth of the water where the beds were located. These grounds were in general comparable in quality with plaintiff's beds south of Quonset Point which were considered among the best in that area. An indeterminate number of residual oysters were on these grounds. The area was divided into lots numbered 1 to 18, inclusive.

13. The work under the Callan contract, referred to in finding 9, began on March 8, 1940, and was completed in

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Reporter's Statement of the Case about five months. It included dredging offshore immediately adjacent to and north of plaintiff's beds 1 and 2 south of Quonset Point. The dredged material was discharged on the land adjacent to that area and formed a bulkhead. The dredging was done with an hydraulic type of dredge which employed suction. The dredging operation, including not only the operation of the dredge in the water but also the discharge of the water from the bulkhead, caused silt and mud to be carried in the water on to some of plaintiff's oyster beds and some mud and silt also came into this area by reason of the operations north of Quonset Point, hereinafter referred to.

14. In order to mitigate its losses from defendant's prospective operations south of Quonset Point, after it received notice from the Callan Construction Company on February 10, 1940, that that company was about to begin work, plaintiff began on February 12, 1940, the removal of its oysters from beds numbered 1, 2, and 3, which were immediately south of the operations, to beds numbered 6 and 14 which were in the same section but farther south and west of the work being done, 5,375 bushels of oysters being moved during the period February 12 to February 19, 1940. In addition, during the same period, it moved 1,000 bushels from Connecticut to bed 6 south of Quonset Point. From the latter date until May 13, 1940, no further removal of oysters was made from that area to other beds for the reason that its boats were being used on its Connecticut beds and elsewhere and it was occupied with its normal business, such business including the taking of oysters from beds south of Quonset Point, and processing and marketing them. From May 13 to July 26, 1940, inclusive, it moved 2,450 bushels from beds 6, 11, 12, and 14 south of Quonset Point to bed 19 south of Sauga Point and 18,550 bushels from beds 4, 5, 6, 11, 12, and 14 south of Quonset Point, 4,100 bushels to bed 7 and 14,450 bushels to bed 9, north of Quonset Point. No oysters were moved from south of Quonset Point during the period July 26 to November 8, 1940, but during that time, as will hereinafter appear, it was moving oysters from the area north of Quonset Point. From November 8 to December 12, 1940, it removed 1,600 bushels from lots 6, 11, and 12 south of Quonset Point to bed

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105 C. Cls. Reporter's Statement of the Case 19 south of Sauga Point. The cost of the removal operations to plaintiff was $50 per day for the 46 days in which removals took place from beds south of Quonset Point, that is, a total of $2,300, and the average number of bushels removed per day was 608.

15. During July 1940, while plaintiff was engaged in this oyster removal work, defendant, without notice to plaintiff, swept the buoys and markers south of Quonset Point from plaintiff's inshore beds 1, 2, 3, 4, 5, and 15 and as far as the north line of beds 10, 11, 12, 13, and 14. On or about November 8, 1940, and January 6, 1941, plaintiff received notice that the remainder of its beds south of Quonset Point would have to be cleared of all oyster markers because of the commencement of seaplane operations, and shortly thereafter the markers were removed. Markers are necessary

around oyster beds since without them it is both dangerous and illegal to work them. On January 2, 1941, plaintiff's leases on all beds south of Quonset Point were cancelled upon plaintiff's application and upon its representation that it could not continue to use the grounds because of defendant's naval operations thereon. These cancellations did not include bed 19 south of Sauga Point which is sometimes referred to in connection with operations south of Quonset Point but which was not affected by the defendant's operations in question.

16. From beds south of Quonset Point the plaintiff, taking into account plantings, transplantings, sales, and probable growth, sustained an estimated loss of 8,898 bushels of matured oysters, and 1,000 bushels of "1939 set."

17. As heretofore shown, at the time defendant started operations south of Quonset Point for the establishment of the neutrality patrol base it had under consideration a much larger project north of Quonset Point for the construction of a naval air station but the time when the latter was to be begun had not yet been determined upon. The exact date when is was decided to begin operations north of Quonset Point does not appear from the evidence but money for that purpose was appropriated June 26, 1940, and on July 1, 1940, defendant entered into a contract with the George A. Fuller Company and the Merritt-Chapman and Scott Corporation for that work. On July 23, 1940, the naval officer in charge

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Reporter's Statement of the Case of construction at Quonset Point wrote a letter to the district engineer of the United States Army in that area requesting a permit on certain phases of the work, and in that letter stated

The above work is being done in accordance with instructions from the President for the provision of aviation facilities required in the present emergency: The orders from the Navy Department state that this pro

gram should be given the highest possible priority. The work done under this contract and that of the Callan Construction Company was under the supervision and control of the defendant.

18. On July 26, 1940, the fish and game administrator for the State of Rhode Island forwarded to plaintiff a letter of July 25, 1940, from the United States Engineer Office, War Department, Providence, Rhode Island, which read in part as follows:

An application has been received at this office from the U.S. Naval Air Station, Quonset Point, Rhode Island, for a Federal permit to construct a pile and timber bulkhead and to dredge, filling solid behind the bulkhead, in Narragansett Bay at Quonset Point, Town of North Kingston, Rhode Island.

The bulkhead will extend from the southeastern extremity of the Point channelward about 450 feet, thence northerly about 4500 feet to a point about 3400 channelward of the shore, thence return to the shore on a line normal to the preceding course.

The dredging area will be north of the bulkhead and will extend about 1,600 feet further channelward and about 3,000 feet northerly. The dredging will be in varying depths but not to exceed 40 feet (M. L. W.).

The detailed plans may be seen at this office. The letter further stated that protests in order to receive consideration should reach that office by July 29, 1940. Plaintiff thereupon filed a formal protest against that work and shortly thereafter was given verbal information as to the approximate areas to be dredged. August 6, 1940, the officer in charge of construction furnished plaintiff the plan of the proposed operations showing the area to be dredged and the area to be filled north of Quonset Point as well as the area to be swept clean south of Quonset Point.

105 C. Cls. Reporter's Statement of the Case 19. On or about August 8, 1940, a large hydraulic dredge operating by suction, with a capacity of about 47,000 gallons per minute moved into the area north of Quonset Point over the south part of plaintiff's oyster beds and about 2,600 feet offshore opposite Eldridge Creek and about August 15, 1940, started dredging, pumping the material dredged towards the shore by means of a 2,000 foot pipeline inside the bulkhead area and building an island about 500 to 700 feet offshore in Narragansett Bay. At that time no retaining wall or bulkhead had been built. About September 6 or 7, 1940, another hydraulic dredge of approximately the same size and type arrived and began work about 500 feet east of the bulkhead and near the south end of the north-south bulkhead but not far from the first dredge. At times and for about two or three weeks these dredges worked together, the one farther offshore pumping towards the one nearer shore which in turn picked up the material and moved it within the area to be filled. This was common practice in an operation of that kind and was designed to facilitate the work where the shore pipeline was inadequate to reach the desired point.

20. Shortly after the beginning of dredging operations, defendant began the bulkhead construction and the two operations proceeded concurrently in accordance with good construction practice, the latter following close behind the former. By the very nature of the work and manner in which it was carried out the bulkhead was in a partial state of completion during the greater part, if not all, of the dredging work and openings remained at various places through which some mud and silt flowed from deposits from the dredging operations. For a time a small dredge pumped material from inside the bulkhead which was soft and unsuitable for the fill and discharged it outside the bulkhead from where it was carried away with the tide. This latter material was replaced with sand and gravel suitable for the fill. Mud and silt were also encountered in the dredging of a turning basin in the area southeast of Quonset Point, where about 30 percent of the material dredged was of that character and it was dumped overboard near Hope

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