Petrovich v. United States, 421 F.2d 1364

421 F.2d 1364 | Ct. Cl. | 1970

Lead Opinion

Cowen, Chief Judge,

delivered the opinion of the court:^*

This is a case filed pursuant to 28 U.S.C. § 1497 (1964) wherein an oyster grower asserts a claim for damages allegedly arising from dredging operations of defendant United States in making river and harbor improvements authorized by act of Congress. The facts are detailed in the findings and only those necessary to put the case in posture for decision will be related here. For reasons which hereinafter appear, it is concluded that defendant United States is liable to plaintiffs¹ in the sum of $10,000. The award is of necessity derived in tbe nature of a jury verdict and is far less than the $150,000 claimed in the petition, which latter sum is speculative and unsupported by the evidence. The defendant’s contingent claim against Jefferson Parish Council, which was summoned as a third party defendant, is dismissed.

Jefferson Parish Council filed an answer, alleging that this court has no jurisdiction over it as a third party defendant. Without waiving its jurisdictional defense, the Council answered the defendant’s contingent claim.

The facts show that on March 11,1960, the State o'f Louisiana executed a written document in which it assured Jefferson Parish Council that the State would hold the Council harmless on account of any liability or claim for damages incurred by the 'Council as a result of the assurances 'given to the United States by the Council ('finding 5). In view of that agreement, the Jefferson Parish 'Council had a notice served on the State of Louisiana, pursuant to our Pide 41, to appear and assert its 'interest in the case. In response to the notice, the State of Louisiana appeared and filed an answer both to plaintiffs’ petition and to defendant’s contingent claim against Jefferson Parish Council.

I

The Barataría Bay Waterway project was authorized by Act of July 3, 1958, 72 Stat. 297, 298. Before the defendant United States would proceed with construction it required that local authorities give an act of assurance to “[h]old and save the United States free from damages resulting from construction and maintenance of the project.” The Jefferson Parish Council, in writing, extended such assurance. The State of Louisiana, in turn, extended a similar assurance to the Parish. Work commenced on August 8, 1962, and was finished on November 9,1963.

The project involved enlargement by dredging of a channel in the inland waterway system, which channel crossed a comer of a 190-acre lease Petrovich had obtained ‘from the State of Louisiana for the growing of oysters in Bayou Colas, Jefferson Parish. The 6.4 acres directly necessary for the project right-of-way were judicially acquired by the State of Louisiana at a valuation of $800 per acre with an additional allowance for oysters destroyed.

The Government plan for construction involved use of a bucket dredge which would deposit excavated material (spoil) along both sides of the waterway, with 200-foot openings to be left between every 800 feet of spoil bank. The spoil was to be placed in open water.

State and parish officials were consulted about the construction plans and were aware of the kind of equipment to be used in the Bayou Colas area. They did not protest but rather extended full cooperation. The openings in the spoil banks were designed .at the suggestion of the State of Louisiana to maintain currents and allow lateral passage of small vessels.

Plaintiffs now complain that the spoil banks did impede the currents, causing silt previously in suspension to be deposited on oyster beds of the lease. It is also alleged that silt was deposited on the oyster beds by erosion of the spoil banks and by dredging with the bucket dredge instead of a hydraulic dredge which could have placed the spoil elsewhere than in open water. For whatever reason, the evidence does establish, and the principal expert witness for defendant United States admitted in his testimony at the trial, that plaintiffs suffered damage to their lease, causing a reduction in oyster production by siltation, and that this can best be attributed to the project. Plaintiffs have not alleged a taking.

Numerous witnesses, including experts, were called by the parties; their estimates of damage varied considerably, yet all but one concluded that the project had caused damage to all or part of the remaining 183.6 acres of plaintiffs’ lease.

The evidence is conflicting as to permanence of the damage incurred; the weight of the credible evidence is that it is temporary in nature. The silt has largely cleared from the lease by the natural settling of the spoil banks and reactivation of currents. At most, the damage affected 51 acres of the lease. The weight of the evidence suggests that about 31 acres near the waterway suffered serious damage to oyster production which can reasonably be attributed to the project. A hurricane apparently contributed to some siltation of oyster beds, and the evidence shows that siltation in Bayou Colas is also caused by other factors, such as drainage of rainfall, erosion of marshes, disturbance of water levels by winds and tides, and the backsweep of waters from the Mississippi River. Future maintenance of the channel is to be by hydraulic dredge with which new spoil will be placed on land, so that reoccurrence of any deleterious effects of bucket dredging is unlikely.

II

The jurisdictional basis for this action, 28 U.S.C. § 1497 (1964), originated as a Senate amendment to the Rivers and Harbors Act of August 30, 1935, ch. 831,49 Stat. 1028, 1049.² In Schroeder Besse Oyster Co. v. United States, 95 Ct. Cl. 729 (1942), the Court of Claims decided that a showing of factual causation by plaintiff oyster grower would be sufficient to establish liability of the Government:

Under, the terms of this act the Government has not only, given plaintiff the right to sue for damages but it admits its liability for all damages resulting to oyster growers from “dredging operations and use of other machinery and equipment” for making such improvements.

It is not necessary under the terms of this act to prove negligence in the operation of any instrumentality of the Government but simply to show by the preponderance of the evidence that the plaintiff was an oyster grower who was damaged, as a result of dredging operations and the use of machinery and equipment in making the improvements. [95 Ct. Cl. at 738.] ³

Two subsequent cases have affirmed tbe holding of Schroeder Besse by implication,⁴ while a third has done so expressly.⁵ Indeed, the Government here concedes that no proof of its negligence is required by plaintiffs.⁶

III

This court has enunciated its acceptance of the “settled principle that where the fact of damage has been established, absolute certainty or precise mathematical accuracy as to the amount of damages is not necessary.”⁷ This view is in consonance with the following explanation by the Supreme Court in Story Parchment Co. v. Paterson Parchment Payer Co., 282 U.S. 555, 562-63 (1931):

* * * there is a clear distinction between the measure of proof necessary to establish the fact that petitioner had sustained some damage, and the measure of proof necessary to enable the jury to fix the amount. The rule which precludes the recovery of uncertain damages applies to such as are not the certain result of the wrong, not to those damages which are definitely attributable to the wrong and only uncertain in respect of their amount. * * *

Where the tort itself is of such a nature as to preclude the ascertainment of the amount of damages with certainty, it would be a perversion of fundamental principles of justice to deny all relief to the injured person, and thereby relieve the wrongdoer from making any amend for his acts. In such case, while the damages may not be determined by mere speculation or guess, it will be enough if the evidence shows the extent of the damages as a matter of just and reasonable inference, although the result be only approximate. The wrongdoer is not entitled to complain that they cannot be measured with the exactness and precision that would be possible if the case, which he alone is responsible for making, were otherwise.

The Court of Claims has had occasion to consider damage claims by oyster growers in at least three contexts: fifth amendment taking cases,⁸ suits under special jurisdictional acts,⁹ and suits under predecessors of 28 U.S.C. § 1497 (1964).¹⁰ Most frequently at issue as items of alleged damage are loss of value of oyster bed leases and destruction of oysters on leases due to the Government action sued upon.

That normal difficulties in proof of damages are compounded by the very nature of a claim for destruction of oysters or loss of value of a submerged lease was recognized in F. Mansfield & Sons v. United States and seven other cases [The Oyster Cases], 94 Ct. Cl. 397 (1941). The state of the evidence there was described as follows:

It is impossible to satisfactorily calculate with any definite exactitude the amount of mud deposited on the lots, the number of lots actually affected m whole or in part, the number of oysters destroyedj and the number which could have been removed in mitigation of damages. * * * It is impossible to fix with any accuracy how far from the channel, where operations were being conducted, that the silt and mud extended. * * *

The amount of damage cannot be determined with any degree of accuracy and finality. Even the values vary. * * * [94 Ct. Cl. at 420.]

The court went on to explain, however, that—

* * * neither the fact that damages are difficult to ascertain nor that they cannot be calculated with mathematical ¡accuracy constitutes a bar to recovery. [Citations omitted.]

All that is required is the allowance of such, damage as, in the judgment of fair men, directly and naturally resulted from the injury sustained. There is no question that the plaintiff has suffered a loss through the negligent .act of the Government * * *. [94 Ct. Cl. at 421.]

Accordingly, “acting as intelligent and fair-minded men composing a jury,” it awarded plaintiff a verdict of $45,000. A similar procedure was followed in Beacon Oyster Co. v. United States, 105 Ct. Cl. 227, 241, 247, 63 F. Supp. 761, 765 (1946).

Even in the absence of “any regular system of records or bookkeeping by the plaintiff” as to the “cause and amount” of damage, plaintiff received a jury verdict judgment in Seipp v. United States, 107 Ct. Cl. 210, 218-19, 68 F. Supp. 205, 206 (1946). Although plaintiff’s claim was denied in part, the test for measure of damages promulgated in The Oyster Oases has been reiterated ¡and applied by the Court of Claims.¹¹

As is so often true with oyster claims before the court, the evidence falls far short of being very satisfactory as to the amount of damages suffered. This fact is illustrated in detail by the findings. The petition claims $450,000 for loss of 150,000 sacks of oysters at $3 per sack. Plaintiffs’ proof and requested findings go in another direction, claiming $77,-992.50 for destruction for oyster production of 75.4 acres ($1,034.37 per ¡acre) and a like amount for “possibility of further damages.” The evidence supports none of these figures. Helpful documentary evidence on damages is here largely nonexistent and, as usual, the experts are pretty far apart as to the extent of damages and reasonable compensation therefor. It is very clear, however, that due to no fault of his own, Petrovich suffered damage, temporary in nature, by Government construction of the Barataría Bay Waterway project. Although there are deficiencies in the quality of the proof, perhaps made inevitable by the nature of a claim for a crop to be harvested from beneath the waters, there is sufficient evidence in the record so that, considering the relative qualifications of (the experts, the testimony of the many other witnesses and the exhibits received into evidence at the trial, it is reasonable to conclude as a jury would, and from the record as a whole, that the sum of $10,000 would represent fair and reasonable compensation to plaintiffs. Nothing is allowed for plaintiffs’ claim for “the possibility of further damages” since this is too speculative for consideration and measurement by any test.

IV

On motion of defendant United States, the Jefferson Parish Council, Gretna, ¡Louisiana, was summoned and has appeared as a third party defendant. The factual basis of the Government’s motion for issuance of summons to the council was the resolution of that body heretofore referred to, which included an obligation to “[hjold and save the United States free from damages due to construction and maintenance of the [Barataría Bay Waterway] project.” The United States contends that this court has jurisdiction to enter judgment over against Jefferson Parish Council for any recovery had by plaintiffs against the Government herein.

Jurisdiction over third parties in the Court of Claims stems from Section 14(b) of the Contract Settlement Act of 1944, 41 U.S.C. § 114(b) (1964), which reads in pertinent part as follows:

The Court of Claims, on motion of either of the parties, or on its own motion, may summon any and all persons with legal capacity to be sued to appear as a party or parties in any suit or proceeding of any nature whatsoever pending in said court to assert and defend their interest, if any, in such suits or proceedings, * * *. The Court of Claims may, upon motion of the Attorney General, in any suit or proceeding where there may be any number of persons having possible interests therein, notify such persons to appear to assert and defend such interests. * * * [E]xcept that the United States shall not'be heard upon any counterclaims, claims for damages or other demands whatsoever against such person, other than claims and contingent claims for the recovery of money hereafter paid by the United States in respect of the transaction or matter which constitutes the subject matter of such case, unless and until such person shall .assert therein a claim, or an interest in a claim, against the United States, * * *.

This statutory provision originated as a House amendment to the Contract Settlement Act.¹²

The statute does not empower this court to render judgment on the Government’s contingent claim against Jefferson Parish Council unless (1) the Government’s claim is for the recovery of money which it has already paid out to the third party in respect of the transaction or matter which constitutes the subject matter of the suit, or (2) Jefferson Parish Council has asserted a claim, or an interest in a claim against the United States, Bowser, Inc. v. United States, ante at 441, 420 F. 2d 1057. We reiterate our holding in that case that Section 14(b) of the Contract Settlement Act does not vest us with jurisdiction to render judgment on a contingent claim by the Government against a third party solely on the basis of that party’s obligation to “save harmless” the United States from the damages recovered in the principal action. Since the Government here does not seek to recover from Jefferson Parish Council money which it once had but has paid out to the Council in respect to the subject matter of the suit, the Government’s contingent claim against the Council must be dismissed.¹³ Concededly, the Jefferson Parish Council has not asserted a claim, or an interest in a claim, against the United States in this action.

Jefferson Parish Council has admitted in its answer that it executed the “save harmless” agreement in behalf of the United States, but it has not in any way admitted its liability to the Government for the amount of plaintiffs’ recovery in this case. To the contrary the Council has asserted (1) that the assurances it executed do not apply to the 190 acres which were the subject of plaintiffs’ claim, and (2) that the assurances do not apply in the case of damages caused by negligence of the United States or its employees. Since we are not authorized to bear and determine the merits of these defenses against the Government’s contingent claim, these issues must be resolved in an appropriate forum in the event the Government desires to take action against the Council.

V

Although we have no jurisdiction over the Government’s contingent claim against Jefferson Parish Council, we hold here as we did in Bowser, Inc. v. United States, supra, that the decision and judgment on plaintiffs’ claim against the Government binds Jefferson Parish Council and the State of Louisiana as fully as it does the United States. As we have previously stated, both the Council and the State of Louisiana appeared and answered in this case. Moreover, the record shows that attorneys representing both of the third parties were present and participated in all stages of the trial of this case, including oral argument before the court. They not only assisted the United States in its defense against plaintiffs’ suit but interrogated witnesses on their own behalf. We recognize that this participation in the defense against plaintiffs’ suit was made without waiving the jurisdictional objection asserted by Jefferson Parish Council, but both the Council and the State have had their day in court and may not relitigate any of the issues of fact or law here decided on plaintiffs’ claim.

As we pointed out in Bowser, our holding in this respect is based not only on the broad language of section 14(b) of the Contract Settlement Act but upon the general principles of law that are applicable in such situations. As the Supreme Court said in Souffront v. Compagnie Des Sucreries, 217 U.S. 475, 487 (1910):

* * * The case is within the principle that one who prosecutes or defends a suit in the name of another to establish and protect his own right, or who assists in the prosecution or defense of an action in aid of some interest of his own, and who does this openly to the knowledge of the opposing party, is as much bound by the judgment and as fully entitled to avail himself of it as an estoppel against an adverse party, as he would be if he had been a party to the record.

See also Richfield Oil Corp. v. United States, 138 Ct. Cl. 520, 523, 151 F. Supp. 333, 335 (1957).

* The court acknowledges the assistance it has received from the report of Chief Commissioner Marion T. Bennett. We have adopted Parts 1, 2, and 3, of his opinion and have relied heavily on Part 4 of his opinion.

1 Plaintiff Vlaho Petrovich died May 28, 1966, and Ms heirs Nede Zibilich Petrovich, Anthony Vlaho Petrovich, Luke Vlaho Petrovich and Anne Mary Petrovich have been substituted as plaintiffs with shares as set forth In finding 10.

2 79 Cong. Rec. 9414 (1935), S. Rep. No. 893, 74th Cong., 1st Sess. (1935). The legislative history of this aspect of the Act is so scant as to be without interpretative value. S. Rep. No. 893, supra at 83; H.R. Rep. No. 1816, 74th Cong., 1st Sess. 25 (1935) ; 79 CONG. Rec. 3682 ff. (1935).

3 The court arrived at such conclusion notwithstanding earlier dictum to the contrary. F. Mansfield d Sons v. United States and seven other cases [The oyster Cases), 94 Ct. Cl. 397, 413-14 (1941).

4 H. J. Lewis Oyster Co. v. United States, 123 Ct. Cl. 358, 107 F. Supp. 570 (1952), cert. denied, 345 U.S. 939 (1953) ; Seipp v. United States, 107 Ct. Cl. 210, 68 F. Supp. 205 (1946).

5 Dixon v. United States, 103 Ct. Cl. 160, 165 (1945).

6 Brief of Defendant United States at 1-2. The third parties contend, as one basis for avoiding contingent liability, that the Corps of Engineers was negligent in not using a hydraulic dredge instead of a bucket dredge. Plaintiffs say this in hopes of strengthening their claim. Negligence has not been proven and It is not shown that any of the parties complained about defendant’s proposed machinery for dredging before work began in Bayou Colas. It was held In certain circumstances that use of the hydraulic dredge may be negligence. Cf. The Oyster Cases, 94 Ct. Cl. 397 (1941) ; Beacon Oyster Co. v. United States, 105 Ct. Cl. 227, 63 F. Supp. 761 (1946).

7 Dale Constr. Co. v. United States, 168 Ct. Cl. 692, 729 (1964), and cases cited therein ; accord, Luria Bros. & Co. v. United States, 177 Ct. Cl. 676, 695-96, 369 F. 2d 701, 712-13 (1966) ; Adams v. United States, 175 Ct. Cl. 288, 299, 358 F. 2d 986, 993 (1966) ; Specialty Assembling & Packing Co. v. United States, 174 Ct. Cl. 153, 184, 355 F. 2d 554, 572-73 (1966), and cases cited therein.

8 Tignor v. United States, 65 Ct. Cl. 321 (1928) ; Bailey v. United States, 62 Ct. Cl. 77 (1926), cert. denied, 273 U.S. 751 (1927).

9 Mason v. United States, 123 Ct. Cl. 647 (1952) ; Beacon Oyster Co. v. United States, 105 Ct. Cl. 227, 63 F. Supp. 761 (1946) ; The Oyster Cases, 94 Ct. Cl. 397 (1941) ; Andrew Radel Oyster Co. v. United States, 78 Ct. Cl. 816 (1934).

10 H. J. Lewis Oyster Co. v. United States, 123 Ct. Cl. 358, 107 F. Supp. 570 (1952), cert. denied, 345 U.S. 939 (1953) ; Seipp v. United States, 107 Ct. Cl. 210, 68 F. Supp. 205 (1946) ; Dixon v. United States, 103 Ct. Cl. 160 (1945) ; Schroeder Besse Oyster Co. v. United States, 95 Ct. Cl. 729 (1942).

11 H. J. Lewis Oyster Co. v. United States, 123 Ct. Cl. 358, 371-72, 107 F. Supp. 570, 577 (1952), cert. denied, 345 U.S. 939 (1953) ; cf. Andrew Radel Oyster Co. v. United States, 78 Ct. Cl. 816, 823, 827, 828, 829 (1934) ; Bailey v. United States, 62 Ct. Cl. 77, 92 (1926), cert. denied, 273 U.S. 751 (1927).

12 90 Cong. Rec. 5190 (1944), H. R. Rep. No. 1590, 78th Cong., 2d Sess. 33 (1944).

13 Although Jefferson Parish Council notified the State of Louisiana to appear herein, the Council is not seeking any recovery over against the State In this action. Both the Council and the Government acknowledge that we do not have jurisdiction to render judgment on any elaim of the Council against the State. See Rolls Royce, Ltd. v. United States, 176 Ct. Cl. 694, 364 F. 2d 415 (1966).

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Concurrence Opinion

Davis, Judge,

concurring:

The only part of the court’s opinion in which I do not join is Part IV, repeating the recent holding in Bowser, Inc. v. United States, ante, at 441, 420 F. 2d 1057. Following the theory of my separate views in that case, I also concur in the result here on the ground that, as in Bowser, the proper exercise of our discretion calls for a refusal to determine the defendant’s claim against the Jefferson Parish Council. As the Chief Judge’s opinion indicates, that party has raised substantial issues, independent of plaintiffs’ claim, as to its liability under the “save harmless” agreement. These separate questions can now appropriately be tried out in another tribunal if the Government still wishes to proceed against the Parish Council.

FINDINGS of Fact

The court, having considered the evidence, the report of Chief Commissioner Marion T. Bennett, and the briefs and argument of counsel, makes findings of fact as follows:

1. This is a suit under 28 U.S.C. §1497 (1964), which confers jurisdiction on the Court of Claims “to render judgment upon any claim for damages to oyster growers on private or leased lands or bottoms arising from dredging-operations or use of other machinery and equipment in making river and harbor improvements authorized by Act of Congress.”

The petition demands damages of $450,000 computed upon alleged destruction of 150,000 sacks of oysters at $8 per sack. Plaintiffs’ requested findings modify this demand to one for recovery of $155,985, which sum consists of $77,992.50 ($1,084.37 per acre) for 75.4 acres of an oyster lease allegedly destroyed by construction of the Barataría Bay Waterway project, Louisiana (hereinafter sometimes referred to as the project), and $77,992.50 for “possibility of further damages.”

2. On motion of defendant United States of America, and pursuant to 41 U.S.C. § 114(b) (1964) and Rule 23(a) (2)^* of this court, the Jefferson Parish Council, Gretna, Louisiana, was summoned and has appeared as a third party defendant.

On motion of third party defendant Jefferson Parish Council, and pursuant to 41 U.S.C. § 114(b) (1964) and Rule 23(a) (1)^* of this court, the State of Louisiana was notified and has appeared as a party which appears to have an interest in the subject matter of the suit.

3. The Act of July 3, 1958, 72 Stat. 297, 298, authorized construction of the Barataría Bay Waterway project, Louisiana, to be executed “in accordance with the plans and subject bo the conditions recommended by the Chief of Engineers” in H.E. Doc. No. 82, 85th Cong., 1st Sess. (1957).

4. The Chief of Engineers stated as follows in H.K. Doc. No. 82, supra at 24:

100. Proposed local cooperation. — It is proposed that the following local cooperation be prescribed:

(a) Provide without cost to the United States all lands, easements, and rights-of-way necessary for the relocation, enlargement, and extension of the project and for subsequent maintenance when and as required.

(b) Accomplish and maintain without cost to the United States all alterations in pipelines, cables, and any other facilities, necessary for the construction of the project.

(c) Hold and save the United States free from damages resulting from construction and maintenance of the project.

5. The project is located wholly within Jefferson Parish, Louisiana, and the Jefferson Parish 'Council, at a regular meeting of March 10, 1960, unanimously passed a resolution extending the required assurances to the United States, including an obligation to “[h]old and save the United States free from damages due to construction and maintenance of the project.” On March 11, 1960, the State of Louisiana, in a document quoting the language of H.K. Doc. No. 82, supra, and signed by the Governor, Attorney General, and Director of Public Works of the State of Louisiana, assured Jefferson Parish Council that it would provide without cost to the Council all necessary easements, rights-of-way, and soil disposal areas necessary for construction of the .project and would—

* * * save and bold tbe said Jefferson Parish Council harmless on account of any liability or claim for damages incurred by said Council by the granting of said assurances, arising out of the construction of said canal over and across state-owned lands and water bottoms.

G. Vlaho Petrovich, original plaintiff herein (referred to as plaintiff), obtained from the State of Louisiana on May 2, 1960, a lease, No. 15684, of 190 acres of the bottom of Bayou Colas, located in Jefferson Parish, Louisiana, for use in growing commercial oysters. The lease expires January 1, 1974. The lease lies on the west side of the Barafaria Bay Waterway at the junction of Bayou Colas with the bay.

Bayou Colas is a wide tidal drainage bayou connecting Hacfcberry Bay with Barataría Bay. Substantial fresh water from Hacfcberry Bay and a number of lakes and bayous to the northwest buffer the saline waters of Barataría Bay and allow generally undisturbed natural setting and growth of oysters within the bayou. Swift tidal currents through the bayou from Barataría Bay to Hackberry Bay normally help to keep the bayou water bottom relatively free of silt or mud and to .provide mainly a firm base for oyster growth. The bayou suffers to some extent from high winds which disturb the alluvial deposits of the area, from silt which sweeps back from the gulf where it is deposited by the Mississippi Liver, and from drainage from rainfall and erosion of the shoreline. The concave nature of the natural shoreline also impedes to some extent the effectiveness of the currents in keeping the water bottom clean.

7. The project as planned crossed a comer of plaintiff’s 190-acre lease. Pursuant to the assurances extended on March 10, 1960, the State of Louisiana, on behalf of Jefferson Parish, acquired 6.4 acres of the southeast corner of the lease through exercise of its power of eminent domain. Just compensation for plaintiff in the sum of $6,620 was decreed on June 20, 1961, by the 24th Judicial District Court for the Parish of Jefferson, State of Louisiana. This sum included compensation both for the permanent loss of the leasehold on the 6.4 acres and of oysters thereon.

8. In accordance with, the statutory authorization and reliance upon the act of assurances given by the Jefferson Parish Council, the United States, acting through the Corps of Engineers, entered into a contract with the Great Lakes Dredge and Dock Company for construction of the portion of the Barataría Bay Waterway project near Bayou Colas. Work under the contract was commenced on or about August 8,1962, and completed November 9,1963.

9. The project involved enlargement of the then-existing Barataría Bay Waterway to a width of 125 feet by a depth of 12 feet. Construction plans called for the use of a bucket dredge in the vicinity of plaintiff’s lease to scoop out the bottom of the waterway and to deposit the excavated material (or spoil) on each side of the newly created channel in open water. Intervals of 200 feet between each 800 feet of spoil bank were called for in the plans, and this requirement was complied with in construction, though the openings later became substantially closed by erosion. The suggestion for spoil bank openings was made by the State of Louisiana. There is no record of any protests by the third parties regarding proposed construction methods or equipment in Bayou Colas.

10. Plaintiff Ylaho Petrovich died May 28, 1960, and the Civil District Court for the Parish of Orleans, Louisiana, placed the following heirs in possession of his estate in the stated proportions:

_ Nede Zibilich Petrovich — one-half interest in her own right and one-third of one-half as legatee, together with the usufruct over the remainder of the estate of Ylaho Petrovich;

Anthony Ylaho Petrovich, Luke Ylaho Petrovich and Anne Mary Petrovich in the proportions of one-third each of the remaining two-thirds of the decedent’s one-half.

The foregoing persons were by motion duly substituted as parties plaintiff by order of the commissioner entered August 31,1967.

11. Present plaintiffs contend that project dredging has destroyed 75.4 acres of the lease for oysters and will continue to impair it. It is alleged that silt from dredging spread over and destroyed plaintiff’s oyster beds near the spoil banks. It is also alleged that silt from the spoil banks has been and is being washed onto the lease by current action. The primary means of damage, however, is averred to be the loss of natural currents due to the spoil bank barriers, resulting in deposition on the lease of silt which the prior rate and pattern of current had been able to maintain in suspension. It is established by the evidence that an oyster covered by a few inches of silt will die within a week or less.

12. Mr. Robert P. Waldron, a witness on behalf of plaintiffs, is a consulting geologist and marine 'biologist. He qualified as an expert in the field of oyster bottoms, oyster analysis, and mortality. His work as a consulting geologist has included hydrology of water currents, as well as sedimentation of canal dredging and spoil placement. He contracted with the Louisiana Department of Public Works to examine and report on all oyster leases within the proposed right-of-way of the Barataría Bay Waterway, project and to act for the State of Louisiana in negotiations and any judicial proceedings for their procurement. In this capacity he first examined the lease here on three occasions in January and March 1961. At that time he considered that the 6.4 acres to be directly and permanently taken from plaintiff’s lease for construction of the waterway channel were worth $800 per acre.

13. Mr. Waldron’s responsibilities also included precon-struction examination of all leases within 1,500 feet of the center line of the project right-of-way. In this latter capacity, Mr. Waldron made a survey of the remaining 183.6 acres of plaintiff’s lease on six dates in February, March, and May 1963, summarizing his findings in a report of June 11,1963. The examination included depth soundings, tonging and dredging for oysters, and taking of bottom cores in 12 locations. At that time, approximately 40 percent of the lease bottom was reef, 40 percent constituted firm mud, and the remainder was soft mud. The lease which had been recently harvested was generally of good quality although showing some signs of damage to oysters by mud and oyster drill snails. The currents were found to be swift but were not measured, nor would it have been practical to do so.

14. Mr. Waldron’s first postconstruction examination of the lease was made on June 30,1964, and reported in written form July 7,1964. At that time, he determined that some 31 acres in the southeast corner nearest the project right-of-way had been silted oyer since the previous survey. The silted area extended 800 to 1,000 feet from the spoil banks. The silt was heaviest, up to a foot thick, near the project spoil banks. He was unable to state an opinion regarding what portion of the 31 acres had been silted by direct deposition of spoil in project construction and what portion had been silted as material dropped out of suspension apparently due to disruption of currents by placement of project spoil; the clear implication, however, of his testimony was that project construction was the cause of the silting. Using a valuation of $800 per acre, Mr. Waldron calculated plaintiff’s damages for 31 acres at $24,800, assuming permanent damage to and loss of that portion of the leasehold for oyster production.

15. A brief examination by Mr. Waldron in August 1967 disclosed that some silting had spread beyond the 31 acres earlier observed to areas scattered throughout the lease, including its previously unsilted western section. Hurricane Betsy had occurred on September 9,1965, and was suggested as a partial cause of the silting. Mr. Waldron made no formal, written report of the August 1967 survey.

16. Mr. Waldron’s final surveys were made for the Louisiana Department of Public Works on 3 days in April 1968, the month of trial. Included therein were depth soundings, dredging for oysters, and taking of bottom cores in 11 of the 12 locations identical to those in the 1963 survey. Mr. Waldron found oysters throughout the lease but also determined that the accumulation of silt was generally greater than it had been in 1964, but less than in 1967. One area silted over so as practically to preclude productivity comprised 51 acres in the eastern part of the lease nearest the project right-of-way. This area included most of the 31 acres previously found to have been covered. It was Mr. Waldron’s opinion that the 51 acres were silted as a result of project construction, probably due to loss of current movement.

Two areas totaling 28.4 acres in the western half of the lease were also silted over, but this was stated to have been the probable result of Hurricane Betsy in 1965 and subject to correction in time by currents and the effects of fishing.

Part, however, of the 31-acre area silted in 1964 had been cleared. This was attributed by Mr. Waldron to subsiding of the spoil banks of the project and reestablishment of currents. The silt which had been 1 foot thick in 1964 now showed a thickness not exceeding 5 inches.

17. Mr. Waldron also testified that future maintenance dredging of the waterway near Bayou Colas was, at his request, to be accomplished by the hydraulic method. This was confirmed by a representative of the New Orleans District, Corps of Engineers, and the Louisiana Department of Public Works. Such dredging would not involve cleaning the waterway by redredging and placing the newly dredged spoil on the old spoil banks in open water. With the hydraulic dredge the new spoil would be transported to and deposited upon land or in a marsh behind a diked area. The net effect would be the ultimate sinking of the original spoil banks and concomitant restoration, over an uncertain period of time, of normal currents in Bayou Colas. The normal currents would, in turn, scour the bottom clear of silt and restore it as a favorable bed for oyster propagation. It is not possible, in Mr. Waldron’s opinion, to say how long it will take for the lease to be fully restored to its original condition, which, although not without silt, was capable of good oyster production.

18. Dr. John- G. Mackin, called as a witness by the State of Louisiana, is a professor of biology at Texas A & M University and until recently served as chairman of that department. He is experienced in teaching, in oyster research, and is specifically familiar with currents in Barataria Bay and silting of oyster beds in the area. He is a qualified expert in marine biology, has published 25 papers on his oyster research and the effect of dredging and silting in Louisiana bays and has studied all phases of the biology of Barataria Bay since about 1947.

19. On April 11, 1968, just prior to trial in this case, Dr. Mackin examined plaintiffs’ lease and prepared a written report of his findings. After determining the location of soft bottom areas by probing, Dr. Mackin took cores and subjected them to microscopic analysis. He concluded that the northeast and southwest corners of the lease might have been silted after construction of the .project but not because of it. It was his opinion that the deposition was a result of inequilibrium produced by the rising level of the gulf and consequent disintegration of nearby marshlands.

20. Dr. Mackin explained that natural siltation over a period of years occurs slowly enough so that certain animal forms known as “forams” can develop. A sudden deposition of silt, on the other hand, precludes such growth, leaving a core layer void of forams or their shell remains. Additionally, shells tend to be left behind in all but direct depositions of spoil due to their higher specific gravity. The presence of forams in the samples from the two silted corners of the lease therefore tended in his view to indicate a silt deposition process of a natural type over a period of years.

Further, the particular forams found in the cores were of a variety indigenous to marsh ponds located around the margins of the project. This finding led Dr. Mackin to conclude that the silt came from the marsh ponds rather than from project dredging.

Dr. Theodore P. Ford, chief of the Division of Oysters and Water Bottom Seafoods, Louisiana Wild Life and Fisheries Commission, disputed Dr. Mackin’s conclusion that presence of forams effectively disproved the possibility of the origin of the silt having been from project spoil.

21. It was also the opinion of Dr. Mackin that the project did not cause current reduction in Bayou Colas. Currents there were described as affected by tides, rainfall, and drainage of the watershed. There is a channel through Bayou Colas approximately 12 feet deep, with a firm bottom, illustrating existence of strong current. He also gave weight to the fact that the water level was the same on both sides of the channel bordered by the spoil banks, this being said to illustrate that currents had not been blocked by placement of the spoil. Currents in Bayou Colas were described as fairly strong at the time of Dr. Mackin’s examination, and the lease appeared to him to have oyster-producing characteristics of at least fair quality. Dr. Mackin concluded that three-fourths of the plaintiffs’ lease was free of loose silt which would impede oyster production.

22. Dr. Gordon Gunter, witness on behalf of defendant United States, is a marine zoologist and director of the Gulf Coast Research Laboratory, Ocean Springs, Mississippi, which engages in research and teaching related to oysters. He has published 15 ito 20 of his approximately 200 research papers on oysters. He started working in Barataría Bay in 1931 for the United States Bureau of Fisheries. His first work with oysters was in 1935 and has continued. He is well established as an expert in his field and was qualified as an expert witness relating to alleged damage to plaintiffs’ oyster beds.

23. On August 9, 1965, at the request of the Corps of Engineers, Dr. Gunter examined the 31 acres in the southeast corner of the lease found to be silted by Mr. Waldron in his 1964 examination. He did not examine the rest of plaintiffs’ lease and never has. He determined that the 31-acre .area was covered with soupy mud, slush or ooze, up to 6 inches in depth (about one-half the depth of silt Mr. Waldron found in 1964) and that the few oysters present were essentially worthless. He stated there was no way of ascertaining the cause of the silt deposition. His examination of the 31 acres was conducted within 800 feet of the waterway channel and, on the basis of his knowledge and experience, mud and silt will nearly all settle within 1,000 to 1,500 feet from its source in areas such as Bayou Colas. Dr. Gunter’s conclusions, which he gave in testimony, were also set forth in a memorandum 'by him dated August 20, 1965.

24. On March 4, 1966, Dr. Gunter submitted a summary report based on (a) reports by Mr. Waldron on the latter’s 1961 (preconstruction) and 1964 examinations of the lease; (b) a letter report of December 2, 1964, on an examination by Dr. Lyle S. St. Amant, chief of the Division of Oysters and Water Bottom Seafoods, Louisiana Wild Life and Fisheries Commission; and (c) a report by Dr. Gunter to the Corps of Engineers on his August 9, 1965, survey, dated August 20,1965. Based on average annual oyster production figures for Jefferson and other parishes, Dr. Gunter concluded that $100 per acre per year would be a fair estimate of gross revenue for a lease in the Bayou Colas area. He alternatively assumed a high-average production of 20 barrels per acre and calculated a yearly gross income of $160 per acre; assuming a 10-percent profit figure, be thus valued the lease at $16 per acre per year. He concluded that if a lower average production figure was used, namely, the 1964 average production for the area in issue, 14.5 barrels, the lease would be worth about $22,000, as against $30,400 using the higher average. Both figures disregard overhead. Assuming one-third of the lease was destroyed or ruined “in perpetuity” it was his opinion that plaintiffs had suffered a loss of between $7,200 and $10,000. He also made an estimate that the lease had a reasonable market value of $300 per acre, based largely on average oyster production in Jefferson Parish, plus an inflationary factor of 3.5 percent per year. There were no sales of oyster leases which establish market prices at the time here in issue.

25. Dr. Gunter reexamined the 31 acres in the southeast comer of the lease on April 9,1968, the month of trial, using tongs to probe the bottom and to examine oysters in the area. He testified that virtually all of the prior silt was gone and that good oysters were present in substantial quantity. Since he found the oysters to be larger than those reported in a 1961 survey of the lease, he concluded that the condition of the 31 acres had improved since then and suggested increased salinity due to the project as a cause of the improvement.

He also noted that his opinion of the quality of the lease had changed for the better since his 1965 survey. His letter report on the April 1968 examination evaluated the damages to the lease at $10,000. Most crucially, however, he testified on cross-examination that it was his opinion that construction of the project had caused the damage, although it was not permanent. In reaching this conclusion he gave weight to the time sequence of construction, silting, and clearing of the 31 acres.

26. Plaintiffs offered no credible evidence of the economic value of plaintiffs’ oyster production from the lease either before or after construction of the waterway. Plaintiffs’ evidence on damages consisted of expert testimony, daybooks, statements, receipts, and income tax returns. These records relate to all the leases which were worked by Petrovich, including the one here in issue. They give no indication of the quantity of oysters which were harvested, injured or destroyed or from wbat areas of ithe lease. The records do not establish the full cost of producing oysters on the lease in issue, the net price which was or could have been obtained, or the profit, if any, which plaintiffs may have lost. There is no proof of the diminution of the value of the lease on the open market at or near the time in issue.

Ultimate FINDING

27. The natural and anticipated possible consequence of construction of the Barataria Bay Waterway by defendant United States was impairment by siltation of approximately 81 acres of plaintiffs’ adjacent oyster lease. Production of oysters on the lease was thereby reduced during the years 1963-68. This project was constructed by defendant using established dredging and engineering procedures and after consultation with Jefferson Parish and the State of Louisiana, without their protest, and in reliance upon an act of assurances given by the parish. Negligence of defendant is not established by the evidence but is not in issue, proof of damages by defendant’s actions having been proved by the weight of the credible evidence. This evidence also proves that the damage to plaintiffs’ leasehold is temporary and that the lease ia rapidly being restored to preconstruction conditions for oyster purposes. Proof of plaintiffs’ damage and losses is not established with any precision by the evidence but it is found that a judgment for plaintiffs in the sum of $10,000, in the nature of a jury verdict, and based on the expert testimony, is fair and reasonable on the record made.

CONCLUSION OF LAW

Upon the foregoing findings of fact and opinion, which are adopted by the court and made a part of the judgment herein, the court concludes as a matter of law that plaintiffs are entitled to recover from defendant United States the sum of $10,000 and judgment is entered to that effect. Defendant’s claim for judgment over against third party defendant Jefferson Parish, based on acts of assurance issued by the Parish in favor of the United States, is dismissed.

* [Since September 1, 1969, Rule 41(a) (2) ]

* [Since September 1, 1969, Rule 41(a) (1)]