
    MAJOR C. TODD, JR., SURVIVING PARTNER, AND MAJOR C. TODD, JR., AND IRA T. TODD, JR. CO-ADMINISTRATORS OF THE ESTATE OF IRA T. TODD, DECEASED PARTNER OF THE PARTNERSHIP FORMERLY TRADING AS TODD BROTHERS v. THE UNITED STATES
    [Cong. No. 16-54.
    Decided July 19, 1961]
    
      
      Harry E. Wood for the plaintiffs. Emery and Wood were on the briefs.
    
      Philip W. Lowry, with whom was Assistant Attorney General William H. Orricla, Jr., for the defendant.
   Per Curiam :

This is a congressional reference case before the court pursuant to Senate Eesolution 308, 83d Cong. 2d Sess., which resolution referred to the court S. 749 for a report sufficient to inform the Congress of the nature and character of plaintiffs’ claims as provided by 28 U.S.C. 1492 and 2509 and Rule 14 of this court.

The case was referred pursuant to Rule 45 to Marion T. Bennett, a trial commissioner of this court with directions to make findings of fact and recommendations as to the nature of plaintiffs’ claims. The commissioner has done so in a report filed July 21, 1960. Briefs and exceptions were filed by both parties, and the case was submitted to the court on oral argument by counsel. Since after full consideration of the record, the court is in agreement with the findings and recommendations of the trial commissioner, as hereinafter set forth, it hereby adopts the same as the basis for its recommendation to the Congress. It is therefore concluded and reported to the Congress that plaintiffs have an equitable but not legal claim against the United States in the amount of $23,240. See opinion of this date in the companion case of G. W. Todd, et al., Cong. No. 17-54 post, p. 111.

The clerk will certify to the Congress pursuant to S. Ees. 308, 83d Cong., 2d Sess., this opinion, together with the opinion of the trial commissioner and the findings of fact which follow.

It is so ordered.

OPINION OP THE COMMISSIONER

This is a congressional reference case before the court pursuant to sections 1492 and 2509, title 28, United States Code, and to Senate Resolution 308, 83d Congress, 2d Session, referring to the court S. 749 for a report sufficient to inform Congress of the nature and character of the plaintiffs’ demand as a claim, legal or equitable, against the United States, and the amount if any, legally or equitably due from the defendant to the claimants. The Todd Brothers, sometimes hereinafter referred to as the plaintiffs, claim $6,800 as the fair and reasonable depreciated value of their fishing nets, poles and equipment and $45,000 as the value of their property rights in certain fishing locations off Cedar Point, Maryland, in the Chesapeake Bay, the same allegedly having been taken by defendant without just compensation under the fifth amendment to the Constitution. The suit is brought by Major C. Todd, partner of Ira T. Todd, deceased, the latter represented here by Major and by Ira T. Todd, Jr., coadministrators.

The partner plaintiffs, residents of Crisfield, Maryland, for many years prior to 1941, conducted commercial pound-net fishing operations for shad and herring off the western shore of Maryland. In 1940 and 1941 they fished five nets in the Chesapeake Bay above Cove Point at or near Flag Point or Governor’s Run and five nets below Cedar Point. In 1941 Maryland adopted certain conservation measures restricting pound-net fishing (2 Annotated Code of Maryland, 1951, Art. 66C). Thereafter, it was necessary to have a license. Plaintiffs secured such licenses for their 10 nets. They were renewed through. 1950 with modifications. These licenses could, as a matter of right, be renewed annually. They were for specific locations indicated in the original application, and these locations were a matter of record in the offices of the Maryland Department of Tidewater Fisheries. From the time of enactment of the State statute the holders of licenses had a property right in the fishing grounds where they were licensed to fish and such right could be sold, pass by inheritance to the nest of tin of a deceased owner, or be left to others by will. The statutes are set forth in the findings.

On July 6, 1943, and December 14,1943, the Secretary of War issued danger zone regulations governing navigation in waters of the Chesapeake Bay between Cedar Point, Maryland, and Smith Point, Virginia. These regulations established restricted and prohibited areas for military purposes arising out of the activities of the Patuxent Naval Air Station. From and after December 14, 1943, plaintiffs were prevented by defendant from operating their nets in their licensed locations below Cedar Point in a normal and profitable manner. In 1944 they were permitted under severe restrictions to fish two of their nets below Cedar Point, but it was not a successful operation because of defendant’s restrictions. Thereafter, all efforts to fish the five nets in this area were abandoned by plaintiffs. The restrictions not only reduced the number of nets plaintiffs could fish but limited the hours and made the operation inherently dangerous by reason of the location of the nets within gunnery ranges.

Plaintiffs were able to use one additional net and set of poles at their Flag Point location. The plaintiffs made no attempt to find other locations knowing that it would be futile, as their specially designed pound nets would not have been suitable for other locations which, in any event, were either unavailable since licensed to others or prohibited by policy of the State commission. The nets and poles were withdrawn from the water and rotted on the beach. Plaintiffs continued to fish above Cove Point and obtained a supplement to their income by working for the State, planting oyster shells.

An amendment to the danger zone regulations, effective April 19, 1949, while reducing the restricted area, did not help plaintiffs because their five nets below Cedar Point were still in an area where fishing structures, such as they had employed, were forbidden without defendant’s prior written approval, and defendant’s regulations made it clear it would not be responsible for any damage to such structures. By this time, however, plaintiffs had no nets and poles to use in these five licensed locations. They had deteriorated beyond use. Their replacement for operation under existing restrictions would have been impractical, even assuming it had been approved by defendant. Plaintiffs’ use of five nets was effectively frustrated by defendant, and plaintiffs’ property was rendered valueless thereby.

In its brief, defendant for the first time raised the defenses of the statute of limitations and of laches. These are affirmative defenses. Bule 15 (b) of the court requires such defenses to be set forth affirmatively in the pleadings. Defendant has not done this. Assuming, however, that the coux-t might at the time of argument allow the pleadings to be amended under rule 18 (b) to conform to the proof, some observations are here offered as to these defenses.

The plaintiffs say that the effective date of the alleged taking was December 14,1948, when the regulations of July 6, 1943, were amended, as set forth in finding 7, which prevented their successful fishing. The 1943 fishing season continued without interference of a serious nature until it ended on or about June 1, 1943. In the 1944 fishing season the plaintiffs’ fishing was limited in the prohibited area to the use of two of its nets there and by the end of that season on or about June 1,1944, it was first clearly apparent that defendant had effectively frustrated plaintiffs’ normal fishing operations below Cedar Point and made its licensed rights in all five locations there without real value.

The petition was filed November 10,1954. The claim first accrued well beyond the 6-year period of limitation (28 U.S.C. 2501). There is no evidence of any claim for payment prior to the filing of the petition unless it be the bill, S. 749, set forth in finding 2 and introduced on February 2, 1953, to confer jurisdiction on the court to hear and determine this claim and in effect waive the statute of limitations by requiring only that the claim must be filed in the court within 6 months after date of enactment of the act. S. 749 was not enacted, however. It was referred to the court by S. Res. 308 with directions to report as to the nature of the claim, legal or equitable, and the amount due, if any, to the claimants.

The statute of limitations is jurisdictional. It cannot be waived except by act of Congress. It is the duty of the court to raise the question if it is not raised by the parties. In Empire Institute of Tailoring, Inc. v. United States, 142 Ct. Cl 165, it was said: “The court has consistently held that a claim first accrues on the date when all events have occurred which fix the liability, if any, of the United States and entitles the claimant to sue thereon. [Citing cases.]” The plaintiffs could have brought suit at any time within 6 years after June 1,1944. Not having done so, I recommend that Congress be advised that plaintiffs have no good legal claim.

Plaintiffs say that in Jackson v. United States (1952), 122 Ct. Cl. 197, also a congressional reference case, the date of taking was February 24, 1943, and the petition was not filed until February 21, 1950; yet the court held that plaintiff had a good legal claim. The statute of limitations is not referred to in the pleadings, findings, or opinion in that case. I can only say, respectfully, that I would not have come to the same conclusion as to the right of legal recovery in Jackson.

Defendant says that the claim here is barred by laches, for the considerable delay in making the claim has been to the prejudice of defendant in loss of important evidence relevant to permissions granted plaintiffs to pound-net fish below Cedar Point and the capabilities and feasibility of plaintiffs fishing elsewhere in Chesapeake Bay. It is hard to understand how defendant can be excused from taking property on the grounds that the owner might obtain other property just as good elsewhere. In any event, evidence was offered on both of the ideas defendant now advances in support of laches.

Plaintiffs admit that they had no thought of a Court of Claims action until after the judgment in Jackson, supra. The filing of the claim was long delayed. In O'Brien v. United States, 148 Ct. Cl. 1, 3, the court said:

Laches is an equitable defense, and in its. operation it fulfills the same function as the statute of limitations at law. However, laches, unlike the statute of limitations, is a flexible concept based on fairness and applied in the discretion of the court. The cause of the delay, the hardship to the defendant, the nature of the relief, and other factors must all be considered in determining its application.

In applying the doctrine of laches the defendant must establish the defense in the usual manner and mere delay in asserting rights is not sufficient to establish such a defense. Henry v. United States, 139 Ct. Cl. 362. Admitting some lack of diligence by plaintiffs, I am not satisfied that defendant has shown prejudice by the delay sufficient to bar the action. Both elements are necessary to this defense. Levy v. United States, 118 Ct. Cl. 106. The delay, however, could be considered sufficient to eliminate the allowance of interest as a part of just compensation. Finally, defendant itself is late in asserting this defense. As the court said in Crocker v. United States, 130 Ct. Cl. 567, 575:

* * * This contention was raised for the first time in the defendant’s brief. The rules of this court require that the defense of laches be pleaded as an affirmative defense. This defense was not contained in the defendant’s answer and the defendant has presented no evidence to show that it had in any way been prejudiced by the delay of the plaintiff in filing this suit. Since laches is an affirmative defense, it must be pleaded or it is considered waived if it is not pleaded.

This is also the interpretation of the similar Federal Buie of Civil Procedure. Riley v. Titus, 190 F. 2d 653.

Attention is now directed to whether defendant’s actions in this case constituted an actual taking within the meaning of the fifth amendment prohibiting the taking of private property for public use without just compensation. The short answer to this is that the same question was answered in the affirmative by the court in Jackson v. United States, 122 Ct. Cl. 197. In a letter of April 2,1954, to the Chairman of the Senate Judiciary Committee, the Secretary of the Army, referring to the court’s decision in Jackson and to S. 749 for the relief of plaintiffs, said, “The Department of the Army is of the opinion that the claimants under the subject bill should be compensated in a reasonable amount for the damages suffered as a result of the loss of the right to fish.” That letter is a part of the file transmitted to the court by the Senate and is in the Senate report on the bill referred to the court.

The court said in Matthews, Trustee, v. United States, 87 Ct. Cl. 662, 714:

* * * A taking of property within the meaning of the Constitution may be accomplished without formally divesting the owner of title to the property or of any interest therein. It is not material whether the property is removed from the possession of the owner, or in any respect changes hands; if it is of such a character and so situated that the exercise of the public use of it, as warranted by the statute, does, in its natural consequences, affect the property by taking it from the owner or depriving him of the possession or some beneficial enjoyment of it, then it is appropriated to public use by competent authority, and the owner is entitled to compensation. Constitutional rights rest on substance, not on form, and the liability to pay compensation for property taken is not avoided by leaving the title in the owner, while depriving him of the beneficial use of the property.

Defendant permanently deprived plaintiffs of property from which they earned their living and which they had the right to sell or devise. It had a value, and defendant is equitably, and but for the statute of limitations would legally be, required to pay for appropriating it. This was no mere frustration of a prospective business opportunity as in United States v. Grand River Dam Authority, 363 U.S. 229. It was the destruction of profitable property rights long existing. Defendant did not forbid use of the navigable waters under tbe commerce clause which, would have relieved it from liability as indicated in the Jachson and Grand River Dam Authority opinions and cases cited there. True, the danger zone regulations were promulgated pursuant to a river and harbor act, 40 Stat. 266, 33 U.S.C. 1, but the object to be obtained was not in aid of commerce on navigable waters but rather the attainment of military purposes which restricted navigation and commerce. The Secretary’s authority to issue regulations in the interest of national defense and protection of life and property on navigable waters is specifically restricted to such action as will not unreasonably interfere with the food fishing industry. 40 Stat. 892, 33 U.S.C. 3. Defendant’s actions here were an unreasonable interference.

Defendant undertakes to distinguish the Jackson case. Defendant says plaintiffs’ property rights to fish were limited by the Maryland Tidewater Fisheries law requiring permission of the abutting riparian owner, in this case the United States. A careful reading of the statutes relied upon (2 Annotated Code of Maryland, 1951, Art. 66C, § 249 and 258) indicates that they are not pertinent since they refer to the tidal waters of the tributaries or rivers running into the Chesapeake Bay. Plaintiffs did not fish in the tributary waters.

Defendant further contends that in the instant case, as distinguished from Jackson, plaintiffs had made a binding agreement with the defendant and the Tidewater Fisheries authorities not to fish more than three poimd nets below Cedar Point subsequent to 1943. Defendant is referring to a conference described in the findings which took place between the parties about the first of the year 1944, at which time defendant granted permission for plaintiffs to fish two of their five nets below Cedar Point under certain restrictions which among other things required the fishermen to get out of the restricted area where their nets were before 8 a.m. The defendant says that this so-called agreement was a waiver by plaintiffs of their right to fish five nets in the manner previously followed below Cedar Point. This is a harsh interpretation of what happened. There is nothing at all in the evidence to suggest that plaintiffs considered this anything but a temporary arrangement to make the best of a bad situation in which they had no other choice. Plaintiffs continued to have their licenses renewed, although they were unable to use them due to defendant’s actions. The consequences of defendant’s taking of plaintiffs’ property rights granted by those licenses cannot be avoided by granting to plaintiffs permission to make limited use of those rights under conditions which proved altogether worthless.

What then is the value of the lost fishing rights of Todd Brothers? There is no evidence of market value for there were no sales. Plaintiffs’ requested findings suggest $45,000.

In the Jackson case the court had evidence before it showing that the plaintiff’s net annual income from the nets involved was an average of $2,050 for the 3 years immediately before the taking. Plaintiff was given a judgment of $10,000 described as in the nature of a “jury verdict.” That is one-fourth of $40,000, which capitalized at 5 percent approximates plaintiff’s annual net income in that case. However, this court did not make a judgment based on capitalization of earnings. Five times the plaintiff’s average annual earnings in Jackson is closer to what was actually awarded.

In the instant case there is no evidence of actual earnings, either immediately before or after the taking, for the nets and locations in question. The only evidence about earnings is the testimony of one of the plaintiffs that the profit from the five nets below Cedar Point was about the same as for the five above Cove Point. For the latter, the earnings for several years after 1943 averaged just under $4,500 annually, but this may have included income from activities other than pound-net fishing. It is fairly obvious that the right to fish the other five nets here in issue had some value although there is no record of what income they produced. Plaintiffs had been fishing these net locations for many years. It must have been a profitable thing or plaintiffs would not have continued operations there nor would they have been ready, willing and able to do so in 1944 when effectively prevented from normal operations by defendant’s intervention in their affairs. It must be remembered, too, that the partners fished the same number of nets and split their profits. It is inherently unlikely that the two fishing locations could have differed much under such an arrangement. Of course, the nets above Cove Point were many miles away. More herring than shad were caught there. Fishing is an inherently speculative enterprise. The widely fluctuating profits in evidence show that.

Accepting the results in the Jackson case as a formula and assuming comparable net profits from plaintiffs’ two net locations would place a valuation on the fishing rights here in the sum of $22,500. Absent the more substantial evidence of the Jackson case as to the direct earnings from the nets in question, and considering the doubt that plaintiffs’ income, as shown by the evidence, was exclusively from the Flag Point nets, it is doubtful if the rights here are entitled to as high a proportionate valuation. A fair estimate, again in the nature of a jury verdict, is that plaintiffs’ fishing rights below Cedar Point were worth not to exceed $20,000 at the time of their effective elimination by defendant.

To the foregoing sum must be added the depreciated value of four pound nets, $2,400, and of the poles for these nets, $840. Nothing is allowed for one net and one set of poles for which plaintiffs found use elsewhere.

The foregoing determination of just compensation for the taking of plaintiffs’ property is, under the facts and circumstances of the case, necessarily in the nature of a jury verdict. That such a method of arriving at just compensation is appropriate in such cases in this court is so well established as not to require emphasis. “Where, for any reason, property has no market, resort must be had to other data to ascertain its value; [this] * * * involves the use of assumptions, which make it unlikely that the appraisal will reflect true value with nicety.” United States v. Miller, 317 U.S. 369, 374; American-Hawaiian Steamship Company v. United States, 129 Ct. Cl. 365, 369. “The ascertainment of value is not controlled by rigid rules or artificial formulae; what is required is a ‘reasonable judgment having its basis in a proper consideration of all relevant facts. Minnesota Rate Cases, 230 U.S. 352, 434’ ”; Western Contracting Corporation v. United States, 144 Ct. Cl. 318.

It is concluded for the reasons stated in the opinion and upon the findings of fact that plaintiffs have an equitable but not a legal claim against the United States for $23,240 and it is recommended that this should be reported to the Senate of the United States, pursuant to S. Ees. 308, 83d Congress, 2d Session.

EINDINGS OK PACT

1. This claim is before the court pursuant to S. Ees. 308, 83d Congress, 2d Session, which provides as follows:

Resolved, That the bill (S. 749) entitled “A bill conferring jurisdiction on the Court of Claims to hear, determine, and render judgment on the claims of Ira T. Todd and Major C. Todd, copartners, trading as Todd Brothers”, now pending in the Senate, together with all accompanying papers, is hereby referred to the United States Court of Claims pursuant to sections 1492 and 2509 of title 28, United States Code; and said court shall proceed expeditiously with the same, in accordance with the provisions of said sections, and report to the Senate, at the earliest practicable date, giving such findings of fact and conclusions thereon as shall be sufficient to inform the Congress of the nature and character of the demand, as a claim legal or equitable, against the United States, and the amount, if any, legally or equitably due from the United States to the claimants.

2. S. 749, 83d Congress, 1st Session, which was introduced on February 2, 1953, by Senator John Marshall Butler, provides in part:

Be it enacted by the Senate and Rouse of Representatives of the United States of America in Congress assembled, That jurisdiction is hereby conferred upon the Court of Claims to hear, determine, and render judgment upon the claims of Ira T. Todd and Major C. Todd, of Crisfield, Maryland, against the United States (1) for the loss of their exclusive right of pound-net fishing off the western shore of Cedar Point, Maryland, due to the action of the Secretary of War, on February 19, 1943, in redefining the restricted area of the Cedar Point Naval Air Station; and (2) for the destruction by excavating and negligence of certain fishing gear and nets as a result of the negligence of certain Navy personnel while working on Cedar Point on May 1, 1943. * * * * *
Seo. 3. Suits upon such claims may be instituted at any time within six months after the date of the enactment of this Act, notwithstanding the lapse of time or any statute of limitation. Proceedings for the determination of such claims, and appeals from, and payment of, any judgment thereon, shall be in the same manner as in the case of claims over which the Court of Claims has jurisdiction under section 145 of the Judicial Code, as amended.

3. Ira T. Todd was deceased at the time of the reference of the claim to this court, although this is not reflected in the language of the resolutions quoted above. The petition, however, was filed by Major C. Todd, Jr., surviving partner, and Ira T. Todd, Jr., administrator of the estate of Ira T. Todd, deceased partner of the partnership formerly trading as Todd Brothers. Major C. Todd, Jr., is coadministrator with Ira T. Todd, Jr., of the estate of Ira T. Todd.

4. The Todd Brothers, Major and Ira, were residents of Crisfield, Somerset County, Maryland. For many years prior to 1941 they were commercial fishermen or watermen on the Chesapeake Bay. During 1940 and 1941 they conducted their operations as partners off the western shore of the bay with 10 nets of the pound-net type suitable for shad and herring. They split the net profits of their operations equally. There was a partnership bank account from which equipment purchases were made. Each partner looked after the maintenance of the equipment he used and paid his crew and met other expenses out of the joint account. They fished at separate locations. Major C. Todd fished five nets in the bay 6 miles below Cedar Point, Maryland, in an area where he had fished since 1926. Ira T. Todd, Sr., fished five nets 9 miles above Cove Point, Maryland, near Governor’s Bun or Flag Point or Pond, in an area where he had fished since 1913. These two locations are separated by about 2 hours’ travel time by water. Cedar and Cove Points are separated by the entrance of the Patuxent Biver into the bay. Cedar Point is south of the river and Cove Point to the north. A United States naval air station is located on the south side of the mouth of the Patuxent Biver near Cedar Point.

5. A statute of Maryland, enacted into law and effective June 1, 1941, required fishermen engaged in specific types of commercial fishing operations in Maryland waters, including fishing with pound nets, to secure a license annually from the Maryland Commission of Tidewater Fisheries. From the time of enactment of such statute, the holders of licenses had a property right in the fishing grounds where they were licensed to fish, and such property right could be sold, pass by inheritance to the nest of kin of a deceased owner, or be left to others by will. The requirements to be met in order to secure such annual licenses, and the rights possessed by the holders thereof, are set forth in volume I, Maryland Laws Eelating to the Tidewater Fisheries (2 Annotated Code of Maryland, 1951, Art. 66C), pertinent excerpts of which are as follows:

291. Licenses for Commercial Purposes. — Any person who establishes to the satisfaction of the Commission that he actually used a pound net, haul seine, gill net, or fyke or hoop net more than 40 yards in length for the taking of fin fish for commercial purposes, at any time during the calendar years 1940 or 1941, shall be entitled to. file application with the Commission of Tidewater Fisheries, prior to December 1st, 1941, and the Commission shall grant his application for a license to operate such, but only such nets as he actually operated at any time during such years.
*****
293. Application For. Applications for license shall be filed on forms supplied by the Commission of Tidewater Fisheries, and accompanied by the fee fixed by law for the nets sought to be licensed. * * * The application shall also state the exact location where such net or nets will be set, in the case of pound nets. Failure to furnish such information or a false statement as to any material fact, shall constitute sufficient ground for denial of the application.
* ‡ $
295. Renewal of Licenses. Licenses to operate nets granted under the authority of this sub-title shall expire on December 31st of each year, but shall be renewable annually to the person named therein, unless revoked or suspended for cause, provided application for renewal for the ensuing year be filed on or before December 1st of the preceding year. If any person shall fail to make a bona fide use of his license during any two consecutive license years, the license shall lapse and shall not be renewed. * * * provided, further, that if a licensee shall, at any time during the war emergency, be unable to fish all the nets for which he was licensed because of some condition arising out of the war, he shall not, in consequence thereof, be deprived of his right to license such nets thereafter.
* * * * *
296. Restrictions as to Pownd Nets. The Commission shall not grant a license to any person, under the provisions of this sub-heading, to operate a pound net on the location occupied by any other licensee or within four hundred (400) yards thereof measured at right angles to the line of stakes, unless such other licensee shall have failed to apply for renewal of his license on or before December 1st of the year for which it was granted. * * *
$ $ ‡ ‡
299. Transfer of Licenses. Any license to operate pound nets, haul seines, gill nets, or fyke or hoop nets issued under this sub-title may be transferred whenever the owner of the nets, boats, gear and other equipment necessary for their operation, or the personal representative of such owner, shall sell and convey the same by bill of sale for a bona fide consideration to any person who is eligible under the provisions of Sections 258 and 294 of this sub-title. Such transfer shall be made only upon the surrender of the outstanding license and the execution of an application by the new owner or owners, as in the case of an original application, and the payment of the sum of $5.00 as a transfer fee, whereupon the Commission shall issue a new license for the remainder of the license year. No new license shall be issued if the outstanding license is suspended or revoked at the time of the transfer.
$ $ $ $ $

6. Pursuant to statute quoted above, Todd Brothers made timely application for a license to fish pound nets in specified locations below Cedar Point and above Cove Point. These locations were made a matter of record in the department. On December 19,1941, an annual license “To fish in Bay, ten (10) Pound nets in the waters of the State of Maryland as specified in the license application, * * *” was issued to plaintiffs for payment of a fee of $14. The license was renewed each year thereafter through 1946. For the calendar year 1947 Todd Brothers’ license was renewed for nine pound nets and one haul seine. For 1948 the license was renewed for 10 pounds nets and for 8 such nets for the years 1949 and 1950. Under these licenses Todd Brothers conducted commercial pound-net fishing during the annual fishing season up through the year 1943. From 1944 to 1951 the plaintiffs fished five or six nets above Cove Point, being prevented from successful operations below Cedar Point as shown hereafter.

7. On July 6,1943, the Secretary of War approved danger zone regulations governing navigation in waters of Chesapeake Bay between Cedar Point, Maryland, and Smith Point, Virginia. Smith Point is south of Cedar Point. The regulations are in evidence. They were published in the Federal Eegister on July 16,1943, and given wide public distribution, including publication in the Crisfield Times on August 6, 1943. They defined a machine gun range about 2 miles wide along most of the southern shoreline of Cedar Point Cove and an aerial gunnery range, covering a larger area and including all of the waters of the cove. No vessels were permitted in the machine gun range. Through traffic was permitted in the aerial gunnery range.

The regulations were amended on December 14, 1943, redefining the danger zone and adding a seaplane landing area and a ground gunnery range covering much of the area of Cedar Point Cove. All vessels or other craft were prohibited from entering the machine gun range or seaplane landing area at any time. The regulations prohibited all but military vessels in the areas of the aerial gunnery range and ground gunnery range during their use for firing practice, except for commercial craft proceeding on established steamer lanes in through navigation. These amended regulations were also given wide public distribution, including distribution to the Crisfield post office.

The five pound nets licensed and fished by Todd Brothers in Cedar Point Cove up to and including the 1943 fishing season were all located within the prohibited and restricted areas mentioned above and described by the regulations. Pound-net fishing in the Cove Point or Flag Point area, where the other five nets were, was not prohibited by the danger zone regulations at any time.

8. Commercial pound-net fishing in the bay is seasonal in character. Fishing begins about March 1 each year. However, preparation for the season begins in the late fall and continues through the winter. Preparation involves working on the nets and boats and obtaining replacement poles for the nets. Weather permitting, the poles are driven and nets hung thereon in February. This equipment is used to catch shad, herring, rock, hardheads and trout. The season continues until around June 1 when the nets are removed from the poles, repaired and stored, the poles are pulled from the water and stored on the bank, and the boats are painted. After actual fishing ceases the work mentioned continues for about a month and is taken up again in the late fall as stated above. The defendant’s regulations, heretofore described, did not interfere with Todd Brothers’ pound-net operations prior to the end of the 1943 fishing season. Between the seasons for pound-net fishing plaintiffs dredged crabs and engaged in haul seining and oystering.

9. When it became apparent to Todd Brothers that the restrictions imposed by the Secretary of War in the Cedar Point Cove area would prevent use of plaintiffs’ nets there in 1944, a conference was held with a representative of the Patuxent Eiver Naval Air Station, and others at the station, in late December 1943 or early January 1944. The purpose of the conference was to see what, if any, arrangements could be made about fishing in the Cedar Point Cove area. Both Major C. Todd and Ira T. Todd were present at the conference.

10. The only pound-net fishing at Cedar Point was by plaintiffs Todd Brothers and by Todd and Parks, plaintiffs in congressional reference No. 17-54. The latter firm was composed of G. W. Todd and Lloyd Parks. Ira T. Todd represented Todd and Parks at the conference. Parks had fished five pound nets at Cedar Point prior to the adoption of the danger zone regulations. G. T. Todd, Parks’ partner, had fished five nets at Cove Point. Defendant gave these parties oral permission for the calendar year 1944 to fish 3 of the 10 nets licensed by the two partnerships below Cedar Point, using two separate rigs. The two partnerships thereupon determined to pool for the 1944 season all of their pound-net fishing, totaling 13 nets (10 at Cove Point and 3 at Cedar Point). Under this arrangement the proceeds of seven nets (two at Cedar Point and five above Cove Point) would go to Todd Brothers and the proceeds of sis nets (one at Cedar Point and five above Cove Point) to Todd and Parks.

11. The parties understood that tinder their arrangement with defendant for the 1944 season the setting of poles and nets could be done only at times approved by authorities at the naval air station. This delayed setting the nets for 2 weeks. Plaintiffs were also required to get out of the restricted area by 8 a.m. when gunnery practice commenced. This sometimes required fishing on tide with unsatisfactory results. The best fishing is done in slack water in the morning prior to 11 a.m. Once when Todd Brothers ran a little late, shells splashed water on their boat. The restricted operation at Cedar Point was not profitable. No effort was made to continue it following the 1944 season. Major Todd took one of the Cedar Point pound nets to Flag Point when he and his partner brother fished six nets in 1945. Using 2 rigs for 6 instead of 10 nets proved expensive. The evidence does not explain how plaintiffs were permitted to fish six nets above Cove Point near Flag Point when they had previously had permission to fish only five at that location, and new locations were not being authorized. The fact is, however, that they did. Since the weight of the evidence shows this prohibited, it must have been an exception with the tacit approval of the Tidewater Fisheries Commission or without application to or knowledge of the commission. Major Todd testified that he “just went up and joined his brother at Flag Point.” There is no evidence of any other watermen moving their nets, but there is evidence that they were prohibited from doing so by the State.

12. Todd Brothers did not make any effort to secure licenses to fish their pound nets at locations other than below Cedar Point. They correctly understood that such an effort would have been futile. The policy of the commission was to reduce the shad and herring catch, and it was rejecting applications made by others for new locations whether based upon poor fishing or prohibitory regulations of defendant. Further, lapsed licenses were not being reissued. All other desirable locations were licensed to others. With the exception of the one net referred to in finding 11, the pound nets designed for use below Cedar Point were not properly designed for use in other locations anyway. Fishing was not good in other locations below Cedar Point, and plaintiffs would not have desired to try them even had the policy of the commission permitted a change to those locations and the nets fit the locations. The distance to these other places would also have been too great for proper use in connection with plaintiffs’ locations at Cove Point.

13. On February 25, 1949, the Secretary of the Army approved amended danger zone regulations “governing the use and navigation of waters of Chesapeake Bay from Smith Point to Cedar Point * * * by reducing the size of the aerial gunnery range, establishing two aerial target areas therein, and eliminating the ground firing range and seaplane landing area, * * The amended regulations prohibited the placing of any “permanent or semi-permanent fishing structure * * * on the western side of Chesapeake Bay between Point No Point and Cedar Point without prior written approval of the Commanding Officer, Patuxent River Naval Air Station.” The regulations provided, further, that naval authorities would not be responsible for any damage by missiles to fishing structures or equipment.

These amended regulations became effective on April 19, 1949. They were published in the Federal Register on March 19, 1949, and thereafter publicly posted. All of the pound nets below Cedar Point for which plaintiff Todd Brothers had licenses were within the prohibited and restricted areas as amended.

14. Todd Brothers did not attempt to resume fishing in their licensed positions below Cedar Point after the effective date of the amended danger zone regulations. This was due in part to the change which came too late for plaintiffs to do the preparatory work in getting out poles and nets before the season started. However, the principal reason they did not resume fishing was because the restrictions, while amended, were not in fact lifted, and they would have bad to fish under difficulties mentioned above. Further, plaintiffs in 1949 bad no poles and nets for the Cedar Point locations. When they gave up fishing there after the 1944 season, for reasons heretofore described, they pulled out their poles and nets which thereafter rotted or were destroyed and were of no use by 1949. Eising costs of such equipment, the considerable capital investment which would have been involved to replace it, the time factor, defendant’s restrictions on the equipment’s normal use, and the evident limitation that only two of the five Cedar Point locations could be used by plaintiffs made resumption of fishing below Cedar Point impractical. There was no opportunity for resumption of normal commercial fishing by plaintiffs after the 1949 amendments.

DAMAGES

15. The value of Todd Brothers’ fishing rights cannot be determined from prices paid for similar rights, there being no evidence that any such rights had been sold in arm’s-length transactions or otherwise. There is, accordingly, no proof of market value. The evidence establishes that rental of licensed fishing rights is unknown in the area.

16. Pound nets, such as used by Todd Brothers, derive their name from the manner in which they impound or corral the fish which they capture. They are stationary devices of poles and netting arranged to form a trap. They are the most effective means of catching fish in a net. A long leader in relatively shallow water near the shore directs the fish into the main body of the trap (the heart) in water up to 40 feet deep. A pound net can be as long as 1,500 feet. It requires between 140 and 150 poles to support it. These poles are from 6 to 9 inches in diameter and 30 to 55 feet long. The weight of the evidence is that a pound net is designed specially to fit the particular location where it is to be used and is generally unusable elsewhere. In addition to the net and poles, each pound net required equipment consisting of blocks, tackle, weights, ropes, rings, pulleys and chains.

17. Some parts of a pound net wear out more quickly than others. The nets require annual repairs. On the average, in the use to which plaintiffs put such nets, enough miscellaneous parts would have to be purchased annually to constitute the replacement of one net out of five. The Spruce poles had a useful life of 2 to 4 years before requiring replacement because of rotting. Exposure to air when stacked on the beach between fishing seasons causes the poles to become brittle. They are not treated with creosote. It was necessary to buy about 150 replacement poles annually for five nets and each net used about 150 poles. Equipment used in connection with the nets and poles had a useful life of about the same period. There is no evidence that pound nets, poles and appurtenant equipment have any secondhand or salvage value. All of plaintiffs’ nets and equipment at the beginning of the 1944 season were in good usable condition.

18. There is no evidence of plaintiffs’ actual expenditures for nets and parts thereof. Plaintiffs, however, offered the testimony of an expert witness, a representative of the Linen Thread Company, Baltimore, Maryland, a manufacturer of pound nets. He gave an estimate, based on 1943 prices, that a pound net of the general size and description used by plaintiffs for the locations below Cedar Point, including all material, labor and discounts, would cost $1,664.76 new. Plaintiffs’ nets actually were a little smaller. Major Todd estimated nets such as he used cost approximately $1,500 new in 1943. The evidence is that this would be the approximate cost of the component parts plaintiffs would have purchased annually and that they would not have bought an entirely new net but would have used the parts to keep the nets they had in good repair. It is found that this is a reasonable cost estimate and is supported by the weight of the evidence.

19. In accordance with the foregoing findings, at the end of any one year the condition of plaintiffs’ five nets was that one was fully depreciated, or the equivalent of 5 years of its useful life consumed, one the equivalent of 4 years depreciated, one the equivalent of 3 years depreciated, one the equivalent of 2 years depreciated, and one the equivalent of 1 year depreciated. Thus, the five nets had an aggregate depreciation of the equivalent of 15 net years out of a normal useful life of 25 net years for all five nets. The remaining useful life of all of the nets was therefore the equivalent of 10 net years or 40 percent of their new cost of $7,500 or $3,000. It has been previously found, however, that plaintiffs actually were able to use one of their Cedar Point nets at Flag Point. Thus, they did not lose the value of five nets but rather four. It is found that $2,400 is the depreciated value of the four nets Todd Brothers had below Cedar Point as of December 14, 1943, or on June 1,1944, when it first became plainly apparent those four nets no longer had a useful value.

20. The market price for poles in 1943 varied somewhat, according to the length thereof, but for the five licensed locations plaintiffs had below Cedar Point the poles cost an average of $3.50 each in 1943, or $525 per net, and for five nets a total of $2,625 new. The poles, however, like the nets, were not all new in 1943. As heretofore noted, they were replaced annually at an equivalent of about one new set of 150 poles. The other poles on hand thus varied in age and condition. It is found that the depreciated value of plaintiffs’ poles for the five nets below Cedar Point in December 1943 was $1,050. One set of poles would have been available for the net moved from Cedar Point to Flag Point. The depreciated value of the remaining four sets of poles was $840.

The cost of other equipment used in connection with the pound nets is not established by the evidence.

21. Plaintiff Major C. Todd’s testimony was that in terms of investment, production of fish, and production of net income, the two locations fished by Todd Brothers were about equal. More shad might be caught below Cedar Point and more herring at Flag Point, but the net income from the two operations differed very little. There are no books and records in evidence from which it can be determined what plaintiffs’ income was from pound-net fishing prior to 1943. For the years 1945 through 1951 Todd Brothers’ income tax returns are in evidence. These returns reveal gross income from “commercial fishing,” total deductions and expenses involved in connection therewith, and net income of the partnership. While a separate checking account was allegedly kept for the pound-net fishing operation, the partners had additional income from planting oysters for the State of Maryland after 1944. They also did hook and line and haul seine fishing. There was another bank account and the partners made separate individual tax returns. What went into this other account and what income is reflected on the individual returns is not established by the evidence.

22. Plaintiffs assert that the evidence of net income from the five nets at Flag Point above Cove Point indicates what profit might have been expected from the five nets below Cedar Point and the value of the rights to fish these nets and further that it is reasonable to assume a doubled net income for operation of the 10 nets. Assuming all of the income shown for “commercial fishing” was for the five nets at Flag Point, it varied from a loss of $908.87 in 1946 to a profit of $11,429.08 in 1950. Although the supply of fish increased due to the restrictions upon fishing, and prices were increasing after 1941, plaintiffs’ net income in 1951 was about half of what it was in 1950 and in 1949 it was only $2,496.15. Plaintiffs’ net income for the 7 years 1945-1951 was $31,821.48.

23. The substantial fluctuation in income alleged for operations at Flag Point, together with the uncertainty as to whether that income was exclusively for pound-net fishing at said location, furnishes no reliable standard for evaluating plaintiffs’ lost income or the value of their fishing licenses or rights below Cedar Point. Plaintiffs put a value of $45,000 as of December 14, 1943, upon Todd Brothers’ licensed right of fishing five pound nets in the specified locations in Chesapeake Bay below Cedar Point. It is found that this valuation is not supported by the evidence. It is found that the fair and reasonable value of plaintiffs’ fishing rights lost below Cedar Point after December 14,1943, did not exceed $20,000.

24. In addition to pound nets, the Maryland Commission of Tidewater Fisheries licensed haul seine, fyke or hoop nets and gill nets for commercial fishing purposes. Todd Brothers were inexperienced in the use of such nets. There is no evidence that they owned any such nets or that such nets would have been satisfactory substitutes for pound nets if they had obtained and used them. 
      
       If the court should think Interest Is allowable as a part of just compensation, It should be on the value of two sets of poles and nets from December 14, 1943, and on two other sets of nets and poles from June 1, 1944, and on three-fifths of the value of the fishing rights between December 14, 1943, and June 1, 1944, and on the full value thereafter.
     
      
       The plaintiffs did not raise the issue of destruction of their fishing gear as a result of defendant’s alleged negligence and no findings are made thereon.
     