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Reporter's Statement of the Case Island about a mile and a quarter northeast of the turning basin and carried away with the tide. Some mud and silt were stirred up by the operation of the dredges and were carried away by the tide. About 60 or 65 percent of the bulkhead was completed by the end of 1940 and all of it was completed by about April 1941.

21. Mud and silt from the operations referred to above were deposited on plaintiff's oyster beds and some damage resulted therefrom. No written complaints were filed by plaintiff with defendant of the damage being done to its oyster beds by the dredging operations although many verbal complaints were made. In view of the urgency of the project, defendant's representatives were primarily interested in seeing that it was completed in the shortest possible time, but without any effort on the part of defendant's representatives to avoid harm to oyster beds which were in that area.

22. The area north of Quonset Point within the bulkhead which was filled by defendant included the area occupied by plaintiff's beds 15, 16, 17, and 18, but no oysters were moved to these beds by plaintiff. The area which was dredged included the area occupied by plaintiff's beds 9, 10, 11, 12, 13, and 14 and the southernmost parts of beds 6, 7, and 8 north of Quonset Point. The area north of the dredging operations, consisting of beds 1, 2, 3, 4, and 5 and parts of beds 6, 7, and 8, and amounting to 250 acres, was not damaged by the defendant's operations except to the extent mud and silt were deposited thereon. In connection with these operations north of Quonset Point, some dredging was also done south of Quonset Point which encroached upon a part of plaintiff's beds 1, 2, 6, and 7 in the latter area.

On plaintiff's application, its leases to the extent of 47.55 acres on grounds north of Quonset Point were cancelled by the State of Rhode Island on January 2, 1941, and its leases on the remaining grounds in that area, 455.45 acres, were cancelled March 13, 1941. These cancellations were made on the representation of plaintiff that because of defendant's operations in that area it was no longer able to use these grounds. At that time there were no other beds in that area which plaintiff could obtain and which were economical for 105 C. Cls. Reporter's Statement of the Case plaintiff to use in connection with its existing oyster plant. It thereupon discontinued its oyster business at Wickford, Rhode Island.

23. As heretofore shown, after the acquisition of the leases north of Quonset Point plaintiff moved oysters to that area from its grounds south of Quonset Point, 18,550 bushels having been so moved from June 14 to July 26, 1940, inclusive. From May 4 to June 14, 1940, inclusive, it moved 33,069 bushels of the "1939 set" and 12,180 bushels of mature oysters from its beds in Connecticut to its beds north of Quonset Point.

Immediately after the receipt by plaintiff of the notice of defendant dated July 26, 1940, showing the proposed operations north of Quonset Point, plaintiff, on July 27, 1940, began to move its mature oysters from beds 9 and 12 north of Quonset Point to beds 1 and 2 farther north in that area and during the period July 27 to September 13, 1940, so moved 21,825 bushels of oysters. Plaintiff was hampered in removing all the oysters planted on these two beds by defendant's scows and barges which had been moored over these beds in connection with its operations. On August 1, 1940, it began moving its “1939 set" from beds 10, 11, 13, and 14 north of Quonset Point which were likewise in the area of the dredging operations to beds 3 and 5 which were farther north of Quonset Point and away from the proposed operations, and during the period August 1 to August 14, 1940, so moved 15,825 bushels. At the time these oysters were moved there was little mud or silt on them. However, in March 1941 when plaintiff came to move some 6,000 to 8,000 bushels of its “1939 set” from beds 3 and 5 north of Quonset Point to bed 19 south of Sauga Point, it found that there was much mud on these oysters and that most of them were dead.

From its Connecticut beds the plaintiff in May and June 1940, moved 7,788 bushels to bed 10; 7,806 bushels to bed 11; 12,180 bushels to bed 12; 9,335 bushels to bed 13; and 8,140 bushels to bed 14, all north of Quonset Point.

24. From beds north of Quonset Point the plaintiff, taking into account plantings, transplantings, sales, and probable growth, sustained an estimated loss of 3,648 bushels of

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Opinion of the Court matured oysters and 33,067 bushels of “1939 set.” The average daily removals were 1,068 bushels, at a total cost of $2,150.

25. Neither the quantity nor the condition of oysters lost by the plaintiff solely as a result of the defendant's dredging operations is possible of definite ascertainment. The proof is that there was damage to plaintiff's oysters under the circumstances set forth.

In the necessary absence of such definite proof, the Court, acting as would a jury in like circumstances, finds, as a matter of fact and by way of a special verdict that the loss and damage to plaintiff's oysters, directly consequent upon defendant's operations, as described, amounted to the sum of $20,000, and that this amount fairly represents the plaintiff's loss.

The court decided that the plaintiff was entitled to recover.

WHALEY, Chief Justice, delivered the opinion of the court.

This case comes before the Court under a special jurisdictional act conferring jurisdiction to hear, determine, as to liability of the United States, and render judgment upon the claim of the plaintiff for compensation for damages sustained by it by reason of the injury to its oyster beds at Quonset Point, Rhode Island, as a result of dredging operations carried out in behalf of the United States in connection with the establishment of the naval air station at Quonset Point in the year 1940.

The plaintiff filed its petition under this act and claims compensation for the damages mentioned in the act. The case is one of tort, and not of taking.

The plaintiff was an established oyster grower, propagating, growing, and marketing oysters in New England coastal regions, and processing the oysters at Wickford, Rhode Island.

South of Quonset Point At the time of the injury complained of the plaintiff held leases from the State of Rhode Island on 206.8 acres of oyster grounds lying immediately south and southwest of Quonset 105 C. Cls. Opinion of the Court Point in Narragansett Bay. This area was known as Section 170-A and the plaintiff had divided it into 15 lots or beds, numbered 1 to 15, inclusive.

The findings of fact recite the order of events leading up to the acquisition of land and the development of a waterfront for a naval air base at Quonset Point.

The first indication made public, that Quonset Point would be selected for a naval air station, was in the Hepburn Report of January 3, 1939, which recommended Quonset Point as the location for a major naval air base. Admiral Hepburn, after whom the report was named, was chairman of the board that made the report. This board was made up of officers appointed by the Secretary of the Navy, pursuant to the Act of May 17, 1938, to recommend sites for naval bases or facilities. Legislation followed April 25, 1939, authorizing an appropriation, and on May 25, 1939, came the appropriation for the site. In the fall of 1939 preliminary surveys were made. Nothing definite was publicly forthcoming as to the location of the site at Quonset Point until December 1939, when bids were advertised for construction of a neutrality patrol base south of Quonset Point.

On January 4, 1940, plaintiff's representative personally called upon the defendant's officer in charge of construction at Quonset Point and discussed with that officer the work south of Quonset Point in the territory where plaintiff's 206.8 acres, Section 170-A, consisting of 15 beds, lay.

The work was awarded to Callan Construction Company January 29, 1940. On learning of this award the plaintiff, February 9, 1940, asked the contractor what work would be done and when it would begin, and the next day, February 10, 1940, was advised by the contractor simply that the dredge would begin operations at the site of the project shortly after February 15, 1940.

The plaintiff thereupon, February 12, 1940, began removal of its oysters from beds numbered 1, 2 and 3, which were immediately south of the projected operations by the Callan Company, to beds numbered 6 and 14, farther south and west.

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Opinion of the Court During the period February 12 to 19, 1940, the plaintiff so transferred 5,375 bushels. In addition, during the same period, it removed 1,000 bushels from certain of its propagating beds in Connecticut to bed No. 6, Quonset Point south.

Then, after vacation of a temporary restraining order that had been secured by the plaintiff, the Callan Construction Company began dredging south of Quonset Point, March 8, 1940, and completed this operation in about five months, which would be early in August of the same year.

The plaintiff had its normal business to attend to and could not devote its entire time to the mitigation of damages.

On April 2, 1940, the plaintiff purchased from another oyster company leases on 605.4 acres of oyster beds in Section 136-A, north of Quonset Point, reselling leases April 11, 1940, on 102.4 acres, without profit or loss, leaving 503 acres held by the plaintiff, divided into 18 beds, numbered 1 to 18, inclusive.

In acquiring this acreage north of Quonset Point the plaintiff took into consideration the probability that it could be used for growing oysters only two or three years on account of naval air station development.

The beds acquired north of Quonset Point were to be used and were used for the growth of oysters both from propagating beds in Connecticut and from growing beds south of Quonset Point.

As indicated, the plaintiff had its normal business to attend to. It did not resume the transfer of oysters until May 13, 1940, and from that date through July 26, 1940, it moved 2,450 bushels from beds 6, 11, 12, and 14 south of Quonset Point to bed 19 south of Sauga Point (not here involved), and 18,550 bushels from beds 4, 5, 6, 11, 12, and 14 south of Quonset Point to beds 7 and 9 north of Quonset Point.

From July 26, 1940, to November 8, 1940, the plaintiff confined its removal of oysters to removals from north of Quonset Point. From November 8, 1940, to December 12, 1940, the plaintiff moved 1,600 bushels from beds 6, 11, and 12 south of Quonset Point to bed 19 south of Sauga Point.

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