
    CLAUS SPRECKELS, GRACE HAMILTON, LILLIE WEGEFORTH, ALEXANDER HAMILTON, WALTER D. K. GIBSON, AND WILLIAM H. HANNAM, EXECUTORS OF THE WILL OF JOHN D. SPRECKELS, DECEASED, v. THE UNITED STATES
    [No. A-111.
    Decided February 14, 1927]
    
      On the Proofs
    
    
      Talcing possession of vessel; act of 'June 15, 1911; return, in altered condition; just compensation. — Plaintiffs’ decedent, baying delivered possession of bis pleasure yacbt to tbe Navy under requisition, authorized by tbe act of June 15, 1917, wbicb names tbe charter money wbicb will be paid monthly as just compensation for its use, was entitled, upon its return in altered condition, to reasonable compensation for tbe cost to him of restoring the vessel to its original condition and for tbe loss of tbe use of bis yacbt from tbe date of tbe last rental payment until such time as tbe reconditioning could, by tbe exercise of due diligence, have been accomplished.
    
      The Reporter's statement of the case:
    
      Mr. Lawrence M. Cake for the plaintiff. Mr. Alexander Britton and Britton & Gray were on the briefs.
    
      Mr. J. Robert Anderson, with whom was Mr. Assistant Attorney General Herman J. Galloway, for the defendant.
    The court made special findings of fact, as follows:
    I. On June 7, 1926, after the filing of this suit, John D. Spreckels, plaintiff therein, died, leaving a will in which he named Claus Spreckels, Grace Hamilton, Lillie Wegeforth, Alexander Hamilton, Walter D. K. Gibson, and William H. Hannam as executors, and they, having qualified as such executors, were by order of this court substituted as parties plaintiff.
    At the times hereinafter mentioned, plaintiffs’ decedent, a citizen of the United States, was sole owner of a steam yacht, the Venetia, acquired by him for use as a pleasure craft, and said yacht was so used during all the time it was in his possession.
    II. July 13, 1917, the following telegram was sent from the Secretary of the Navy to the decedent:
    
      Jult 18, 1917.
    Mr. Joi-iN D. Speeckels,
    
      60 Oalifornia, Street, San Francisco, Oalif.:
    
    The exigencies of the Navy in war demand the acquirement of your ship Venetia. Under the law I am sending you notice to that effect. If you prefer to lease or tender it without this procedure wire to-day and state your desires.
    SECRETARY OE THE NAVY.
    July 13, 1917, the Secretary of the Navy wrote decedent as follows:
    July 13, 1917.
    See: The President has directed me to inform you that, by virtue of the power and authority vested in him by the act entitled “An act making appropriations to supply urgent deficiencies in appropriations for the Military and Naval Establishments, etc., approved June 15, 1917,” your ship, the Venetia, will be acquired by the Navy.
    The Venetia has been inspected, and an appraised value placed upon the vessel. A reappraisal will be made by a board of appraisal to determine the just compensation to be made for the vessel and her equipment.
    You are authorized to appear before, or communicate with this board and to present to it, orally or in writing, all the evidence you desire taken into consideration in determining the amount of such compensation. This evidence must be presented at such time as the board of appraisal may set.
    The address of the board of appraisal is No. 26 Cortlandt Street, New York.
    Your attention is invited to the provisions of the act before mentioned regarding compensation. A copy of that portion of the act relating thereto is inclosed.
    You will be informed of the amount determined upon as a just compensation for said vessel.
    Yery respectfully,
    Josephus Daotels,
    
      Secretary of the Navy.
    
    Mr. John D. Speeckels,
    
      60 Oalif ornia Street, Sam, Francisco, Oalif.:
    
    July 14, 1917, Capt. A. S. Halstead, senior member of the Naval Board of Appraisal for Merchant and Private Vessels, wrote decedent as follows:
    
      New Yore: City, July 11, 1917.
    
    John D. Spreckels, Esq.,
    
      60 California, Street, Sam, Francisco, Calif.
    
    Dear Sir : The Navy Department has informed the board of appraisal that the President of the United States has directed the acquisition of the Venetia, and has directed the? board to report to the Secretary of the Navy a just compensation for this vessel.
    You are, therefore, requested to forward to this board, in writing, as soon as practicable, all the evidence you desire taken into consideration in determining the amount of such compensation, including, for example, authentic data as to the original cost of vessel, and, in case you are not the original owner, the date of purchase and purchase price paid by you; .also a definite and concise statement of the amount spent by you in alterations, additions, and upkeep, etc.
    In case you elect to present the evidence in person, you are requested to inform the board, as soon as practicable,, the earliest date on which you will be able to present to the board the above-mentioned evidence in order that a date may be set for your hearing.
    The next meeting of the board of appraisal will be at 10 a. m., Wednesday, July 18.
    The favor of the acknowledgment of the receipt of this letter is requested.
    Very truly,
    A. S. Halstead,
    
      Captain, United States Ncrny, Senior Member.
    
    July 24, 1917, decedent replied to Captain Halstead as follows:
    STEAM YACHT “ VENETIA ”
    San Francisco, Calif., July 21, 1917.
    
    Capt. A. S. Halstead,
    
      United States Naval Board of Appraisal,
    
    
      26 Cortlandt Street, New York.
    
    Sir: I received your communication of July 14 upon my arrival in the city to-day; hence the delay in reply to the same.
    Under date of July 13 I received a telegram from Hon. Josephus Daniels, Secretary of the Navy, as follows:
    “ The exigencies of the Navy in war demand the acquirement of your ship Venetia. Under the law I am sending you notice to that effect. If you prefer to lease or tender it without this procedure, wire to-day and state your desires.”
    I would greatly prefer to lease the vessel during the term of the war, with the understanding that she would be restored to me in as good condition as when taken over by the Navy.
    A short time ago I refused to consider an inquiry for the purchase of the yacht on the basis of $300,000. Her actual cost to me, including amount spent by me in alterations, additions, etc., is as follows:
    Original cost unknown.
    Purchased by me_$125, 00G
    Cost of converting from coal to oil fuel and general overhaul closely approximates_ 50, 000
    Customs duty on vessel_ 12, 000
    Wireless installation_ 2, 600
    Evaporators_ 2, 000
    lee machine and refrigeration system_ 8, 000
    190, 600
    I would be pleased to learn what amount, under reappraisal, would be considered by you a just compensation to be made for the vessel and her equipment, and whether in lieu of this I would have the option of dealing with you on a basis of a lease of the yacht, as suggested in the telegram from the Secretary of the Navy.
    Very faithfully yours,
    JohN D. Speeckels.
    July 27,1917, the Secretary of the Navy sent the following telegram to decedent:
    Mr. JoriN D. Speeckels,
    
      Yacht “ Venetia,” San Francisco, Calif.
    
    Action suspended. Eeturn Venetia San Francisco, August 2.
    Seceetaey op the Navy.
    July 30,1917, Captain Halstead wrote decedent as follows:
    New Yoek City, July SO, 1917.
    
    J. D. Speeckels, Esq.,
    
      A. B. Sprechles' Building,
    
    
      60 California Street, San Francisco, Calif.
    
    Deae Sir: 1. Your letter dated July 24 in reference to the Venetia has been received, and in reply I would state that the matter of leasing or purchasing vessels rests with the Secretary of the Navy and is not within the province of the functions of the board of appraisal.
    2. The functions of this board are, when directed to do so by the Navy Department, to place an appraised value on vessels purchased or chartered by the Navy; also to report what will be a just compensation to owners in those cases where the vessels are required by the Navy.
    3. Before a reappraisal of the Venetia can be made it will be necessary for the board to have before it vouchers, preferably in the form of receipted bills, covering the purchase price and expenditures listed in your letter of July 24. Also please furnish date of purchase by you.
    4. For information as to whether you may lease the vessel to the Navy in lieu of accepting the “ just compensation ” it will be necessary for you to communicate with the Secretary of the Navy.
    Very truly,
    A. S. Halstead,
    
      Captain, United States Navy, Senior Member.
    
    (10 a. m., September 6, 1917.)
    On August 4, 1917, the decedent delivered the Venetia to the Navy authorities at Mare Island Navy Yard and the Navy authorities took possession of her.
    August 22, 1917, Captain Halstead wrote decedent as follows:
    New YoRel City, August 22, 1917.
    
    J. D. Spreckles, Esq.,
    
      A. B. Sprecldes Building,
    
    
      60 California Street, Sam Francisco, Calif.
    
    Dear Sir : Deferring to my letters to you of July 14 and 30, relative to the steam yacht Venetia, I have to inform you that this board has set Thursday, September 6, 1917, at 10 a. m., as the time of the hearing in the case of the Venetia.
    
    You are requested to have on hand at that time all vouchers necessary to substantiate statements of expenditures given in the evidence.
    In case no evidence is presented at the time specified above, the board will proceed with the appraisal on the information and data already on hand.
    Very truly,
    A. S. 'Halstead,
    
      Captain, United States Navy, Senior Member.
    
    August 30, 1917, decedent replied to Captain Halstead as follows:
    
      Steam Yacht “ VeNetia,”
    
      Sam, Francisco, Gdlif., August 30, 1917.
    
    Capt. A. S. Halstead,
    
      United States Naval Board of Appraisal,
    
    
      280 Broackoay, New York City.
    
    Deak Sir: I beg to acknowledge receipt of your letter notifying me to appear personally on the 6th day of September, or submit vouchers in connection with the valuation to be placed on the steam yacht Venetia.
    
    It is impossible for me to appear personally, so I am forwarding statement, supported by vouchers, of such expenditures as I would consider properly enter into the cost to me of the yacht.
    These expenditures are picked out from a large file, and I do not feel that they cover the entire cost, but neither my engineer nor master are with me to check over numerous other items which might properly be added to the cost; however, this data will closely approximate the cost of the vessel to me.
    I may say further that in addition to the amount of the statement inclosed, namely_$189,134.16
    The cost of bringing the yacht from New York to San Francisco (her home port) amounted to_ 26,997.29
    A total of_ 216,131.45
    Kindly acknowledge the inclosure, which I trust will reach you safely.
    I remain,
    Very truly yours, J J J ’
    T r( JohN D. Spreckels.
    September 15, 1917, the Secretary of the Navy wrote the commandant twelfth naval district as follows:
    September 15, 1917.
    From: Secretary of the Navy.
    To: Commandant twelfth naval district.
    Subject: Taking possession of ship Venetia, S. P. 431. Reference: (a) Department’s telegram 13504 of August 4, 1917.
    1. If the Venetia was found in the same material condition when taken over as when inspected, you are authorized to pay to the owner, John D. Spreckels, upon satisfactory proofs of ownership and the execution by him and delivery to you of formal bill of sale of said vessel and her equipment, acknowledging the receipt in full of just compensation therefor, a sum of one hundred sixty-five thousand dollars ($165,000) and a further sum in payment for ordinary consumable stores.
    
      2. The inspection report of this vessel should be on file at the navy yard.
    3. Tour attention is invited to the act entitled “An act making appropriations, to supply urgent deficiencies in appropriations for the Military and Naval Establishments, etc., approved June 15, 1917.”
    Josephus DaNIels.
    September 15, 1917, the Secretary of the Navy wrote decedent as follows:
    Septembee 15, 1917.
    Sir.: You are informed that the President has determined a just compensation for the acquisition of the Venetia, S. P. JfSl, to be one hundred sixty-five thousand dollars ($165,000).
    The commandant, twelfth naval district, has been ordered to pay you the sum of one hundred sixty-five thousand dollars ($165,000) upon proof of ownership, if the condition of the Venetia was the same as when inspected and upon the execution by you and delivery to him of formal bill of sale of said vessel and her equipment.
    The commandant is also authorized to pay you a further sum equal to the value of ordinary consumable stores on board at time of delivery.
    Very respectfully,
    Josephus Daktels,
    
      Secretary of the Navy.
    
    Mr. JohN D. Spbeckels,
    
      60 California Street, San Francisco, Calif.
    
    September 22, 1917, decedent wrote the Secretary of the Navy as follows:
    SaN Diego, Caleb’., September ££, 1917.
    
    Deae Sie: I am in receipt ,of a communication from the Navy Department this day informing me that the President has determined a just compensation for the acquisition of the Venetia to be one hundred and sixty-five thousand dollars ($165,000). It is inconceivable upon what basis this sum was arrived at. Surely very few of the facts were taken into consideration in fixing the amount. As a matter of fact, within the last six months I have been offered three hundred thousand dollars ($300,000) for the yacht, and I refused the offer. I obtained the yacht only after a long search for a vessel that suited me, and I have no desire to part with it.
    In answer to a personal telegram from you requesting me to determine whether I would sell or lease the yacht to the Government, I elected to lease the vessel for the duration of the war, and I assumed upon my acceptance of your offer to lease the yacht, the Government would charter the ship.
    
      Will you please inform me what monthly remuneration I may expect for the charter of this ship ?
    Very respectfully,
    John D. Spreckels.
    Hon. Josephus Daniels,
    
      Secretary of the Nmy, Washington, D. G.
    
    October 20, 1917, the Secretary of the Navy wrote the •commandant twelfth naval district as follows:
    October 20, 1917.
    From: Secretary of the Navy.
    To: Commandant twelfth naval district.
    Subject: Taking possession of yacht Venetia, S. P. JpSl. Reference: (a) Navy Department’s letter 28806-11:14 Op-
    ING-Ca 9/12 of September 15, 1917.
    1. Reference (a) is hereby modified as follows:
    2. You will take possession of the Venetia, owner John X). Spreckels, giving to the owner, or his representative, a receipt for the yacht.
    3. You are authorized to pay the owner, John D. Spreck-els, upon satisfactory proofs of ownership, a sum of two thousand dollars ($2,000) per month for charter money, and in case of loss while in the Government service a sum of ■one hundred and sixty-five thousand dollars ($165,000).
    4. The inspection report of this vessel should be on file at the navy yard.
    5. Your attention is invited to the act entitled, “An act making appropriations to supply urgent deficiencies in appropriations for the Military and Naval Establishments, ■etc., approved June .15, 1917.”
    Josebhus Daniels.
    October 20, 1917, the Secretary of the Navy, wrote decedent as follows:
    October 20, 1917.
    Sir: You are informed that the President has determined a just compensation for the acquisition by charter of the Venetia, S. P. J¡S1, to be two thousand dollars ($2,000) per month for charter money, and in case of loss while in the Government service a sum of one hundred and sixty-five thousand ($165,000).
    You will deliver the Venetia to the commandant twelfth naval district at her present location.
    The commandant twelfth naval district has been ordered to pay you the sum of two thousand dollars ($2,000) per month charter money and in the case of loss while in the Government service a sum of one hundred and sixty-five thousand dollars ($165,000) upon proof of ownership, should the c ondition of the Venetia be the same as when inspected.
    Very respectfully,
    Josephus Dahiels,
    
      /Secretary of the Navy.
    
    JohN D. Spreckels,
    
      60 California Street, Sam, Francisco, Calif.
    
    III. The Venetia was a steam yacht, built in 1903. Her principal dimensions were: Length, 226 feet over all; length on water line, 196 feet; beam, 27 feet; depth, 17 feet; gross tonnage, 558; net, 229. Her average speed ranged from 10% to 11% knots per hour. She was equipped with one three-cylinder triple-expansion engine of about 880 horsepower and Scotch two-furnace boilers. The vessel, while in New York Harbor, was purchased by decedent in 1910 for $125,000, and was thereupon taken through the West Indian Islands and the Strait of Magellan to San Diego, Calif., where she arrived March 5, 1911. In the early part of 1912 she was converted from a coal to an oil-burning vessel. Soon after her purchase by decedent, her refrigerating plant was replaced by a new one and other repairs were made.
    About one month before the Government took possession of her she was dry-docked at the plant of the Bethlehem Shipbuilding Corporation and overhauled. She was then surveyed by Lloyd’s agents and given A-l classification. Thereafter and before the Government took possession of her she made two round trips between San Francisco and San Diego. She had never been used for any purpose other than yachting. She was turned over to the Government in substantially the same condition as when last surveyed.
    On August 4, 1917, when she was delivered by decedent to the commandant, twelfth naval district, at the Mare Island Navy Yard, Calif., there were in the vessel the engine, boilers, tubes, condensers, electric-light plant, pumps, lead bilge pipes, and some other equipment and auxiliaries which had been placed therein at the time of her construction.
    The Navy Department proceeded to make such alterations as would in its judgment properly equip her for use in the Navy. They found that certain parts needed repairing and that other minor parts were missing. They found her machinery was in general in fairly good condition, some repairs and renewals being necessary. They made many important additions and structural changes in preparing the vessel for use in the Navy, such as gun mounts and platforms, magazine chambers, conversion of saloon rooms into crew’s quarters, longer and heavier pilot house, new ice box, different davits, iron in place of wooden hatches.
    In the work of repairing and preparing said vessel for Navy service such equipment as was not needed was removed, boxed and crated, and stored for return to the decedent.
    The repairs and alterations were begun August 4, 1917, and were concluded the latter part of October, 1917, when the ship went to the League Island Navy Yard at Philadelphia, where recalking of decks and other repairs were continued. Thence she proceeded to the Brooklyn Navy Yard, where other work was done upon her. She returned to the League Island Navy Yard and was then put into service, her base being Gibraltar, her employment to convoy merchantmen through the Mediterranean Sea. On her outward trip in the middle of January she encountered several northwest storms from Bermuda to the Azores. On this trip she towed a French submarine chaser, and during the storm suffered a heavy strain, as a result of which the deck seams opened up and she leaked. She also had a collision in the Mediterranean Sea. She was placed in dry dock at least twice at Gibraltar for repairs or renewals.
    IY. In March, 1919, the Venetia was taken to the Mare Island Navy Yard and without alteration was tendered to the decedent. The decedent refused to accept the vessel. A naval board of appraisal, duly appointed, determined the cost of restoring the vessel to the same condition and good order as when taken over, including the cost of replacing articles on board at the time the vessel was taken over and not on board when the vessel was returned, to be $76,331.83, and this amount was approved by the Secretary of the Navy.
    
      March 28, 1919, the Acting Secretary of the Navy wrote the' commandant, twelfth naval district, as follows:
    March 28, 1919.
    From: The Acting Secretary of the Navy.
    To: The commandant, twelfth naval district.
    Subject: U. S. S. Venetia, S. P. J¡31, return to owner.
    1. The commandant of the twelfth naval district is. directed to return the above-named vessel to her owner.
    2. The commandant, twelfth naval district, is authorized to pay to the owner of the above-named vessel (John D. Spreckels, 60 California Street, San Francisco, Calif.) the sum of $76,331.83, this amount having been determined by the board of review and approved by the Secretary of the Navy, as the cost of restoring the vessel to the same condition and good order as when taken over, including the cost of replacing articles on board at the time the vessel was taken, over and not on board when the vessel was returned.
    3. The commandant is directed to pay to the owner of the above-named vessel the amount of charter hire, up to the time she was offered to her owner, taking a receipt therefor.
    4. If possible, a release will be procured from the owner of this vessel at the time payment of the award is made, releasing the Government from any and all claims which the owner might have, by reason of the leasing or use of her by the United States. In case the owner refuses to sign a release, this vessel should be tendered to him under Form “ Sol-D ” and the vessel, if the owner will then accept her,, will be turned over to him upon his giving a plain receipt therefor.
    5. In case the owner refuses to accept the amount as stated in paragraph 2 herein, he should be notified of his legal rights in the matter, i. e., to accept 75 per cent of the above-amount and sue in the Court of Claims for such sum as added to the above-mentioned 75 per cent shall be just compensation due him on account of the taking over and use of this vessel in accordance with the Secretary of the Navy’s-order No. 28905-11:14 of October 20, 1917.
    Victor Blue.
    V. Thereafter, ending September 20, 1919, there were negotiations between the decedent and the Navy Department' for the return of the yacht. Tenders were made to decedent at various times by the Navy Department of the yacht Venetia and the said sum of $76,331.83, mentioned in letter of the Acting Secretary of the Navy dated March 28, 1919.. (Finding IV.)
    
      The decedent refused to accept the tenders as inadequate and finally on September 20, 1919, addressed the commandant, twelfth naval district, as follows:
    “ I have concluded to accept the proposition made me by the United States Government to pay me 75 per cent of the amount of $76,331.83 in payment of the award heretofore made by the board of review sitting in New York, in allowance of a portion of the estimated cost of reconstruction of the yacht V'¿netia. commandeered for service in the war with Germany, which amount has been, and is now, protested by me, and accepted only with the understanding and agreement that all disputes respecting the amount so allowed shall be renewed for consideration by the Court of Claims, and without prejudice to my full right to make such claims and representations before the Court of Claims, or any other body having authority to determine the same, of all additional allowances and payments clue me.
    “ As you know, it has always been, and is now, my claim, ■which Í am able to establish through competent proof, that the allowance made by the Government is inadequate to compensate me for the loss sustained, to place the yacht in condition she was in when taken over by the Government, and my acceptance of the amount to be paid must not be considered as a waiver of my claim to additional allowance and compensation therefor.”
    YI. The United States Government used the Venetia in its service until some time in April, 1919. From August 4,1917, to April 7, 1919, the decedent was paid by the defendant $2,000 per month as charter money, referred to in the letter of the Secretary of the Navy to decedent dated October 20, 1917. (Finding II.)
    On September 25, 1919, the yacht was delivered into the possession of decedent, the receipt of which he acknowledged on that date “ subject to inventory.” Decedent was paid by the defendant the sum of $57,248.87, being 75 per cent of the total award of $76,331.83 made by the board of appraisal.
    VII. The decedent proceeded to have repairs and work done on the said yacht in order to restore it to the condition it was in when delivered to the Government. He had a survey made by a competent marine surveyor and consulting engineer, and upon this survey bids were made for the work. The work was given to the successful bidders and the yacht was restored by them to the condition it was in when delivered to the Government and in addition thereto certain improvements were made.
    The reasonable cost of reconditioning, exclusive of said improvements and not exceeding that which decedent actually expended, and the reasonable compensation for the loss of the use of the yacht from the date of the last rental payment until the time when, by due diligence, the reconditioning could have been accomplished, exclusive of the period of negotiations, amounted to $98,331.83, less the $57,248.87 already paid said Spreckels, or $41,082.96.
    The court decided that plaintiffs were entitled to recover.
   Moss, Judge,

delivered the opinion of the court:

On August 4, 1917, the Government took possession of the yacht Venetia, owned by plaintiffs’ decedent, John D. Spreckels. It was delivered to the proper Navy authorities on that date at the Mare Island Navy Yard.

The vessel was acquired under the provisions of the act of June 15, 1917, which authorized the President, by the terms of subdivision (e) of said act, “ to purchase, requisition, or take over the title to, or the possession of, for use, or operation by the United States, any ship now constructed, or in the process of construction, or hereafter constructed, or any part thereof, or charter of any ship.”

It appears, however, from certain correspondence between .said Spreckels and the representatives of the Government that it was first the intention of the Secretary of the Navy to purchase his yacht outright, to which proposal decedent objected, expressing instead his preference for a suitable rental or hire for its use by the Government. This correspondence continued from a period prior to August 4, 1917, to October 20, 1917, on which date the Secretary ■ of the Navy in a letter to decedent said: “You are informed that the President has determined a just compensation for the acquisition by charter of the Venetia 8 P J¡S1 to be two thousand dollars ($2,000) per month for charter money, and in case of loss Avhile in the Government service a sum of one hundred and sixty-five thousand dollars ($165,000).”

The Venetia was used in the Government service under this arrangement from the time she was taken August 4, 1917, until April, 1919, and $2,000 per month was paid to said Spreckels during that period.

All of the equipment adapted to its use as a pleasure craft was removed and boxed, crated, and stored for return to decedent at the end of its use by the Government.

In preparing the vessel for Navy service important structural changes were made, including the installation of a longer and heavier pilot house, gun platforms, magazine chambers, and the mounting of one gun.

Some time in March, 1919, the vessel was brought to Mare Island and without change of condition was tendered to decedent, who declined to accept it. Negotiations for the adjustment of the differences between him and the Government were unsuccessful. The Government caused an appraisal by the authorized board of appraisal, which board estimated and allowed the sum of $76,331.83 as the cost of restoring the yacht to the same condition and good order as when taken over, including the cost of replacing articles on board at the time the vessel was taken over and not on board when it was returned; and on March 28, 1919, the Secretary of the Navy directed the commandant of the twelfth naval district to return the vessel to the said Spreckels and to pay to him the sum of $76,331.83. This offer was declined by him on the ground that the allowance made by the Government was inadequate.

On September 20, 1919, after continuing efforts to reach an agreement, said Spreckels accepted the Government’s proposal to return the vessel and receive seventy-five per cent of the $76,331.83, reserving his right to assert his claim in this court for an amount which he might consider as just compensation.

Spreckels then proceeded to have the necessary repairs and work done for the purpose of restoring the vessel to its. former condition as a pleasure yacht. This work was completed at an alleged cost of $173,815.27, exclusive of certain, items alleged to be proper charges against the owner, and. not a part of the cost of restoring the vessel to its original, condition when taken over by the Government.

Plaintiffs contend that the Government was under obligation to return the yacht in the same condition as when delivered to the Government, ordinary wear and tear excepted, and that they are also entitled to receive the $2,000 per month rental up to the time when such delivery was made.

This action is for the recovery of the difference between the amount received by said Spreckels on the award, being seventy-five per cent of said award and amounting to $57,248.87, and the amount claimed by plaintiffs as just compensation, $173,815.27, said difference amounting to $116,-566.40; and also rental at $2,000 per month from date of the last rental payment, April 7,1919, until the completion of the work of restoration, July 20, 1920, amounting to $30,838.71, or a total recovery of $147,405.11.

Spreckels was under no obligation to accept the return of the yacht in its condition when tendered by the Government. Pie was entitled to its return in the same condition as it was when taken over; and the offer to return the vessel equipped for Navy service, and to pay decedent the estimated cost of restoring it to its former condition did not relieve the Government of its original duty to restore the vessel and return it to him fitted and equipped as a pleasure yacht.

In regard to the claim of plaintiffs for the cost of reconditioning, it seems practically impossible to separate the cost of actual restoration from the amount of expenditures by decedent, properly chargeable to betterment and general improvements.

Plaintiffs are entitled to reasonable compensation for the loss of the use of said yacht from April, 1919, the date of the last rental payment, until such time as the work of actual reconditioning could, by the exercise of due diligence, have been accomplished, excluding from consideration the period during which the negotiations for the adjustment of the differences between decedent and the Government were in progress.

We are of the opinion that plaintiffs should recover as a just and proper allowance for cost of actual reconditioning and just compensation for loss of the use of said yacht as above predicated, the sum of $98,331.83, subject to a credit of $57,248.87 paid to said decedent on September 20, 1919, or a net sum of $41,082.96.

It is therefore adjudged that plaintiffs recover the sum of $41,082.98. It is so ordered.

Graham, Judge; Hat, Judge; Booth, Judge; and Campbell, Chief Justice, concur.  