
    THE H. J. LEWIS OYSTER COMPANY v. THE UNITED STATES THE STATE OF CONNECTICUT, INTERVENOR, DEFENDANT
    [No. 48806.
    Decided October 7, 1952.
    Plaintiff’s motion for rehearing and amendment of judgment overruled December 2, 1952]
    
    
      
      Mr. Curtiss K. Thompson for plaintiff. Mr. John H. Weir and Mr. Goodman Bloch were on the briefs.
    
      Mr. Jach Rubin for the intervenor. Mr. George C. Conway was on the brief.
    
      Mr. Gilbert E. Andrews, with whom was Mr. Assistant-Attorney General Holmes Baldridge, for defendant.
    
      Mr. Currell Vance, Trial Commissioner.
    
      
      Plaintiff's petition for writ of certiorari pending.
    
   Howell, Judge,

delivered the opinion of the court:

The plaintiff, The H. J. Lewis Oyster Company, is the lessee of 1,657.2 acres of oyster grounds, owned by the State of Connecticut and located in the outer harbor of Bridgeport, Connecticut, which it uses for the propagation of oysters.

On April 3,1947, the Corps of Engineers, as agent of the United States, entered into a contract with a private construction company to improve the channel into the Bridgeport harbor by deepening the existing channel from 25 to 30 feet, by widening it from 300 to 400 feet, and by extending it seaward approximately 7,500 feet. In order to make possible the channel extension, it was necessary to take 8.32 acres from two of the lots leased by plaintiff, lots 815 and 816, which were located directly in its path. Plaintiff’s other lots were located in the vicinity of, but in varying degrees of proximity to, the channel improvements.

Work on the dredging and associated operations involved in the performance of this project was commenced on June 4, 1947, and was completed on February 16, 1948. During this period, and the period immediately following the completion of the dredging operations, plaintiff discovered substantially more mud and silt deposited upon its oyster beds than it customarily found. Where such mud was deposited in sufficient quantities to cover the oysters, they were suffocated. Plaintiff insists that the only circumstance which could account for deposits of mud in the quantity encountered was the dredging operation conducted by defendant, and that under the provisions of the Act of August 30, 1935, ch. 831, § 13, 49 Stat. 1049, as amended, 28 U. S. C. (1946 Ed.) § 250 (a), it is entitled to be compensated for the damage to the various phases of its oyster operations, which allegedly totalled $194,057. Section 250 (a) provides as follows:

The Court of Claims shall have jurisdiction to hear and determine claims for damages to oyster growers upon private or leased lands or bottoms arising from dredging operations and use of other machinery and equipment in making such improvements.

Defendant contends that plaintiff has in general failed to prove any damage to its oyster grounds, other than the damage to plaintiff’s interest in the acreage actually consumed in the channel enlargement, and has in particular failed to establish that any appreciable amount of mud or silt removed during the dredging operations was deposited upon its oyster beds. The State of Connecticut, pursuant to an act of its General Assembly, whereby it agreed to hold the United States free from any damages resulting from these improvements, has intervened in this action to assert arguments substantially the same as those urged by defendant.

Before considering whether or not plaintiff’s oyster beds were damaged by these deposits, we must first determine whether the deposits were attributable to the dredging operations conducted by defendant. Several factors enter into this determination. In the first place, the oysters, by virtue of their life processes, which are described in detail in Finding 7, are themselves producers of considerable quantities of mud. Recognized authorities upon oysters agree that the life of an oyster is primarily a race with mud. Since oysters cannot change their position, they are unable to escape the mud of their own creation, or that which may be deposited upon them from external sources. However, the amount of mud which was found upon plaintiff’s oyster beds during the period here in question clearly appears to have been of such quantity as not to be attributable entirely to the oysters themselves.

Another factor which in our opinion tended to account for the siltation found on plaintiff’s oyster beds was the occurrence of a severe storm in the early part of November, 1947. Experience with such storms has demonstrated that they frequently leave in their wake deposits of sand and silt which settle upon the oyster beds. Thus, it is not unlikely that the deposits found on plaintiff’s holdings were due in part to this natural cause.

The only remaining possible source of these deposits which has been suggested by the parties, or which we can discover from the record, is the excavated material dredged from the bed of the harbor by defendant during the course of the harbor improvements. The dredging operations were performed by three types of dredges: a clamshell dredge, a dipper dredge, and a hydraulic dredge. Although the dredges were operated under careful supervision, some of the excavated material was lost in the surrounding water and frequently resulted in its discoloration for a distance of approximately 200 yards. Careful measurements were kept of the materials excavated, and these reveal that despite defendant’s precautions approximately 26,700 cubic yards of excavated material did not reach the dumping ground located well beyond the harbor. From these facts it is only reasonable to conclude that the material lost in the course of the dredging operations constituted the principal source of the deposits found on plaintiff’s oyster beds. Consequently, we hold that, in accordance with the provisions of Section 250 (a), sufra, the United States must respond to plaintiff for any damages shown to have resulted from the improvement of the Bridgeport harbor.

Much evidence has been introduced as to the accuracy of the silt trap tests conducted by plaintiff and by the State of Connecticut. In order to determine whether the dredging operations were responsible for any increase in siltation, silt traps were placed at various points in plaintiff’s beds during the performance of the work and also during the following year when no dredging was in progress. Periodically these traps were raised and the materials found in them were examined and measured. However, these traps tended to eliminate the natural scouring effect which the currents, tides, and normally turbid waters had upon the bed of Bridgeport harbor, and their results are therefore too unreliable to enter into our above stated conclusion.

As indicated above, the effect of the mud deposits was to cause the suffocation of large quantities of plaintiff’s oysters. But, with the exception of two lots, plaintiff has not furnished us with any evidence as to the number of oysters destroyed in this manner. With respect to lot 710, it appears that during the fall of 1947, and prior to the storm which occurred in November 1947, plaintiff removed therefrom about 19,350 bushels of set, i. e., young oysters, having a value of about 90 cents per bushel. Of these oysters, about one-half were dead whereas the normal mortality rate attributable to natural causes, starfish, and oyster-produced mud, was only eight to twelve percent. In the opinion of plaintiff’s employees, about one-half of the dead oysters had been killed by the mud deposits. From these facts, we think the reasonable value of the oysters destroyed by mud deposits on lot 710 was $4,000 and plaintiff is entitled to recover this sum.

Similarly, plaintiff has also established that during the first five months of 1948 it transplanted 13,435 bushels of material, composed of one-half shell and one-half oysters, from lot 805 to lot 816. Samples again revealed that about one-half of the oysters were dead, and in the opinion of plaintiff’s employees, about one-half of these had been killed by mud. These oysters had a value of $2.50 per bushel. Taking into consideration the effect of the storm in November of 1947, for which defendant was not responsible, we believe that the death of 850 bushels of oysters on lot 805 may properly be attributed to the dredging operations, and that plaintiff is entitled to recover $2,125 for this loss.

Plaintiff urges that the evidence of loss found to have occurred on lots 805 and 710 affords a fair measure of the damage done to the other oysters which were on these lots at that time and which have not yet been removed, and is also typical of the damage done to oysters on its other lots located near the harbor improvements. Moreover, plaintiff insists that proof of this nature, while admittedly not computed with any degree of exactness, is sufficient under the rule expressed by this court in The Oyster Cases, 94 C. Cls. 397, and reiterated in Beacon Oyster Co. v. United States, 105 C. Cls. 227.

In The Oyster Cases, at p. 420, this court made the following summarization of the type of proof required in these cases:

It is impossible to satisfactorily calculate with any definite exactitude the amount of mud deposited on the lots, the number of lots affected in whole or in part, the number of oysters destroyed, * * * It is impossible to fix with any accuracy how far from the channel, where operations were being conducted; that the silt and mud extended. None of these quantities and areas can be ascertained with certainty or exactness.
The amount of damage cannot be determined with any degree of accuracy and finality. Even the values vary. However, neither the fact that damages are difficult to ascertain nor that they cannot be calculated with mathematical accuracy constitutes a bar to recovery. Hetzel v. Baltimore & Ohio R. Co., 169 U. S. 26; Standard Oil Co. v. So. Pacific Co., 268 U. S. 146; Eastman Kodak Co. v. Southern Photo Materials Co., 273 U. S. 359; Story Parchment Co. v. Paterson Paper Co., et al., 282 U. S. 555.
All that is required is the allowance of such damages as, in the judgment of fair men, directly and naturally resulted from the injury sustained.

The proof offered by plaintiff as to the damages to the oysters remaining on the beds does not satisfy even these meager requirements. Inasmuch as plaintiff’s proof is uncertain as to the number of oysters remaining on the bottom, uncertain as to whether the damage from the mud was the same on all lots, and uncertain as to whether the oysters would be removed in the future before death overtook them from natural causes, we must reject these claims as requests for speculative damages. Shroeder Besse Oyster Company, Inc. v. United States, 95 C. Cls. 729. Furthermore, plaintiff’s claim as to the need for cleaning and harrowing its oyster beds in order to remove the mud deposits must be rejected in view of the natural cleaning and scouring effect of the turbid harbor waters upon the beds.

Plaintiff is entitled to recover for the damage to its interest in the 8.32 acres used in the enlargement of the channel. The only reliable evidence which was introduced of the value of plaintiff’s interest in this property was the value of $33 per acre which plaintiff placed thereon for tax purposes. This represents a total value of $274.56 which plaintiff is entitled to recover as part of its damages.

Under the terms of § 250 (a), supra, plaintiff is entitled to judgment against the United States in the sum of $6,399.56.

Pursuant to an act of its General Assembly, the State of Connecticut, intervenor, defendant, agreed to hold the United States free from damages resulting from these Bridgeport Harbor improvements.

Accordingly, judgment over will be entered in favor of the United States against the State of Connecticut in the sum of $6,399.56.

It is so ordered.

Madden, Judge; Whitaker, Judge; Littleton, Judge; and Jones, Chief Judge, concur. 
      
       Section 250 (a) was in effect at the time plaintiff instituted this action, but was supplanted by the 1948 revision of Title 28 contained in the Act of .Tune 25, 1948, ch. 646, § 1, 62 Stat. 941. This provision is now set forth in 28 U. S. C. (Supp. V), § 1497 which contains minor changes in phraseology, but not in substance.
     