
    CLAUDE J. TIGNOR v. THE UNITED STATES
    [No. F-165.
    Decided April 2, 1928]
    
      On the Proofs
    
    
      Eminent domain; just compensation; taking of oyster t>eds. — Just compensation in the amount of the fair market value, together with interest, allowed by the court for the taking, under the act of July 1, 1918, and the proclamation of the President made pursuant thereto, of plaintiff’s leasehold interest in oyster lands, oysters on the land, and personal property.
    
      The Reporter's statement of the case: *
    
      Mr. Allan D. Jones for the plaintiff. Mr. W. E. Hogg was on the brief.
    
      Mr. Dam. M. Jackson, with whom was Mr. Assistant Attorney\ General TLermam, J. Galloway, for the defendant.
    The court made special findings of fact, as follows:
    I. The plaintiff is a citizen of the United States, residing at Yorktown, Va., and has at all times borne true and loyal allegiance to the Government of the United States.
    II. Prior to September 7, 1918, plaintiff was the owner of a lease from the State of Virginia of 98.1 acres of oyster-planting ground located in York River, York County, Virginia. This lease bore date of November 20, 1913, and ran for 20 years from date, at the expiration thereof the lessee having prior right over all other applicators to have the same ground reassigned to him. The said lessee had, prior to 1913, been the holder of the said leasehold through assignment to him on November 26, 1909, by the executrix under the will of the prior owner, then deceased. On said oyster land the plaintiff had deposited oyster shells and had planted oysters.
    On the upland adjoining this oyster ground the plaintiff had erected a small watch house containing a few articles of furniture and equipment incident to the enterprise. Drawn alongside of said house were 4 boats which plaintiff used in season for the carrying on of the the oyster business. Title to the land on which reposed the said house, furniture, equipment, and boats did not lie in the plaintiff.
    
      III. Pursuant to an act of Congress of July 1, 1918, 40 Stat. 188, the President of the United States on August 7, 1918, issued a proclamation declaring that he took “ title to and authorized the Secretary of the Navy to take possession of ” a certain tract of land near Yorktown, Va., for the purpose of a naval mine depot. This tract was described with particularity, and the easterly boundary thereof was given as the westerly low-water line of the York River. To this particular description was added the following: “ Together with all riparian rights, .privileges, easements, and other rights whatsoever, appurtenant or appertaining in any way to-said above-described tract of land and all privately owned rights in the waters lying between the low-water line of said tract and the bulkhead or pierhead line in the York River as such line or lines may be hereafter established.” The plaintiff’s leasehold lay between the said low-water line and the said bulkhead or pierhead line in said York River as thereafter established. The proclamation also contained the following :
    “ The several tracts of land above described, together with ' all improvements thereon and all rights and privileges appurtenant or appertaining in any way thereto, are hereby declared to be and the same are set apart for use for naval purposes and are placed under the exclusive control of the Secretary of the Navy, who is authorized and directed to take immediate possession thereof in accordance with the terms of said act on behalf of the United States, for the purposes aforesaid.
    “ The title to the several tracts of land above described shall be deemed to be vested in the United States from and as of the date that actual possession thereof is taken by the Secretary of the Navy.
    “ The Secretary of the Navy is authorized and directed to take such steps as may in his judgment be necessary for the purpose of conducting negotiations with the owners of property or rights whatsoever therein within the said above-described tracts of land for the purpose of ascertaining the just compensation to which said owners are entitled in order that compensation therefor may be made in accordance with the provisions of the act aforesaid. All owners of land and improvements, title and possession of which are taken hereunder in accordance with the terms of the act hereunder, and all persons having claims or liens in respect thereto are hereby notified to appear before the board to be appointed by the Secretary of the Navy and present their claims for compensation for consideration by the said board in accordance with the provisions of the act aforesaid.
    ‘"All persons residing within said above-described tracts of land or owning movable property situate thereon are hereby notified to vacate the said tracts of land and to remove therefrom all movable property within thirty (30) days from the date of this proclamation. Provided, however, that the Secretary of the Navy may in his discretion, and where such action will not interfere with the public interests, extend said period of thirty (30) days for such further period as he may deem appropriate.”
    IV. On September 7, 1918, and during the plaintiff’s absence from the grounds in question, duly authorized agents of the defendant entered thereupon, took possession of the upland contiguous thereto, the watch house and its furniture, boats, and other equipment incident to the business. They further took possession of plaintiff’s leasehold and proceeded to erect a pier thereover, extending approximately 600 feet into the water, for the purpose of unloading and transferring explosives and mines from boats to the shore. Thereafter boats carrying explosives and mines docked at the said pier, and the cargo was transferred to the shore. The said pier was of temporary construction, was later abandoned for a more permanent structure erected downstream from plaintiff’s leasehold, and has now fallen into disuse and rotted away.
    V. The defendant made’ use of the York River at this point and above and below the same during this period for a safe anchorage for the- fleet, the vessels lying beyond the outermost line of plaintiff’s land. Nets were stretched across the river at various points, protecting the fleet from enemy action and hindering navigation up and down the river to all except authorized vessels. Strict watch was kept along the shore line for any possible action detrimental to the safety of the fleet and the mine depot.
    The building of the pier and the use of the waters adjacent thereto, together with acts of depredation, destroyed the value of the oyster bed.
    YI. Pursuant to the provisions of the statute and the proclamation the plaintiff filed his claim for just compensation before the “ Board of Valuation of Commandeered Property of the Navy Department,” which held hearings for that purpose at Williamsburg, Virginia. This board ordered an award of $500, with which the plaintiff was not satisfied. On November 6, 1924, the plaintiff issued his receipt for $375, being three-fourths of the award, reserving his right to sue for the balance of what he claimed to be just compensation.
    VII. The fair market value of plaintiff’s property taken by the Government, as of September 7,1918, is as follows:
    The leasehold interest in the oyster lands, excluding the planted oysters but including the shell deposit_$7, 500
    The watch house, furniture, boats, and equipment, classified together_ 500
    (The evidence does not indicate the separate values of the articles taken.)
    Oysters on the land_ 7, 000
    Total-15,000
    The court decided that plaintiff was entitled to recover $14,625, with interest from September 7, 1918, until paid.
   Moss, Judge,

delivered the opinion of the court:

Plaintiff, Claude J. Tignor, was the lessee of 98.7 acres of submerged land in the York Eiver, York County, Virginia, which he had leased under the laws of Virginia for the culture of oysters.

Pursuant to an act of Congress of July 1, 1918, 40 Stat. 738, the President of the United States, on August 7, 1918, by proclamation, took “ title to .and authorized the Secretary of the Navy to take possession of ” a certain large tract of land near Yorktown, Va., for the purpose of a naval mine depot. Plaintiff’s leasehold was included in the boundary of said tract. Said proclamation conferred upon the Secretary of the Navy the authority and directed him to take such steps as in his judgment might appear necessary to ascertain just compensation to which the several owners of property taken might be entitled in order that compensation therefor might be made. All owners of land or other property taken were notified to appear before the Board of Valuation of Commandeered Property of the Navy Department and present their claims for compensation. Plaintiff was awarded the sum of $500. Being dissatisfied with said award, plaintiff on October 6, 1924, accepted the sum of $375, three-fourths of the award, and this suit is for the recovery of the remainder of what plaintiff claims as just compensation.

In addition to the leasehold in question, plaintiff owned a small watch house built on the land of another, which contained certain articles of furniture and equipment used in his oyster business, together with four boats which were left at or near said watch house.

The Government took complete and exclusive possession, use, occupancy, and control of all said property on September 7, 1918.

Defendant denies the right of plaintiff to recover in any sum, under the authority of the case of Bailey and Fulgham v. United States, 62 C. Cls. 77. In the Bailey ease the low-water marh was the eastern boundary of the land taken, and plaintiff’s lease was outside and beyond said boundary. In the construction of a bulkhead or pierhead, in aid of navigation, plaintiff’s leasehold was invaded and damaged. The court held that no officer of the Government had authority to take and pay for property beyond the prescribed limits in a taking for the improvement of navigation. In the present case there was included in the particular description of the property embraced in the proclamation the following recital: “ Together with all riparian rights, privileges, easements, and other rights whatsoever appurtenant or appertaining in any way to said above-described tract of land, and all privately owned rights in the waters lying between the low-water line of said tract and the bulkhead or pierhead line in the York River as such line or lines may be hereafter established.” Plaintiff’s leasehold was situated between the said low-water line and the bulhhead or fierhead line as thereafter established.

Said proclamation contained the further provision:

“ The several tracts of land above described, together with all improvements thereon and all rights and privileges appurtenant or appertaining in any way thereto, are hereby declared to be and the same are set apart for use for naval purposes and are placed under the exclusive control of the Secretary of the Navy, who is authorized and directed to take immediate possession thereof in accordance with the terms of said act on behalf of the United States, for the purposes aforesaid.
“ The title to the several tracts of land above described shall be deemed to be vested in the United States from and as of the date that actual possession thereof is taken by the Secretary of the Navy.”

The sole question in this case is the fair value of plaintiff’s property as of September' 7, 1918.

It is shown in the evidence that with the exception of a few acres the whole of plaintiff’s acreage was under cultivation for oysters and was well provided with shell beds, which add substantially to the value of oyster lands. In addition to the shell already on the ground when plaintiff acquired his lease, plaintiff had planted thereon 80,000 bushels of shells. In the years from 1913 to and including 1917 plaintiff planted 30,000 bushels of seed oysters. It requires about three years to mature oysters, and one bushel of seed oysters will produce more than two bushels of marketable oysters. The market price for oysters ranged from 45$ to 55$ per bushel for small oysters and from 75$ to $1.00 for large oysters. Selected oysters sold for $6.00 a barrel of two bushels. From his first planting plaintiff sold 18,000 bushels, and did not exhaust the supply of marketable oysters on the land at that time. In 1917 and 1918 most of plaintiff’s oysters were small and not quite ready for the market. Plaintiff’s land had a considerable value without planted oysters, for the reason that the oyster “ spat,” as it is called, would “ strike ” on the shells, and marketable oysters would be produced by a natural process, thus obviating the expense of planting said oysters. It also had a value without either planted oysters or planted shells as shown by the evidence. The lease extended for a period of twenty years from its date, November 29, 1913, with the privilege of renewal.

The measure of recovery in this case is the value of the leasehold interest in and to the 98.7 acres of oyster land held by plaintiff under the lease from the State of Virginia, together with the value of the oysters located upon said lands at the time of the taking, plus the value of the personal property taken. See Bailey case, supra.

Plaintiff claimed, and the commissioner allowed, $500 as the value of the personal property taken, $7,500 as the value of the leasehold, and $30,000 as the value of the oysters on the land at the time of the taking, making a.total of $88,000.

The court has determined the value of the leasehold interest and of the personal property at $7,500 and $500, respectively, as found by the commissioner. In the question of the value of the oysters located on the lands at the time of the taking, giving due consideration to the speculative element necessarily involved in that character of claim, the court has reached the conclusion that the sum of $7,000 represents the fair value of said oysters.

Plaintiff is entitled to recover, and it is so ordered.

Gbaham, Judgé; Booth, Judge; and Campbell, OMef Justice, concur.  