
    FRANK D. SCHROTH, RECEIVER OF CAPE MAY REAL ESTATE CO., v. THE UNITED STATES
    [No. C-669.
    Decided February 20, 1928]
    
      On the Proofs
    
    
      Eminent domain; just compensation. — Just compensation allowed for tbe taking of certain lands by the President’s proclamation of December 2, 1918, issued under authority of the act of October 6, 1917, as amended by the act of July 1, 1918.
    
      Counterclaim; contract for dredging; substantial performance by contractor. — In pursuance of a proviso contained in the appropriation act of March 2, 1907, the company of which plaintiff is receiver agreed to perform the dredging work in the construction of a harbor suitable for commerce, of which 400 acres should have a depth of 30 feet. The inlet to the harbor was a Government channel with a permanent depth of 25 feet, which limited the availability of the harbor. The company dredged 250 acres of the harbor and a channel from the harbor proper to the inlet, both to a depth of 30 feet, a large portion of the remainder of the harbor having a depth of from 20 to 30 feet, making'the harbor suitable for commerce. Held, that in the absence of actual damage the Government can not recover on a counterclaim for failure to attain a 30-foot depth over the entire 400 acres.
    
      The Reporter's statement of the case:
    
      Mr. Thomas F. Gain for the plaintiff. Mr. If a Jewell Williams was on the brief.
    
      Mr. Dam, M. Jackson, with whom was Mr. Assistant Attorney General Herman J. Galloway, for the defendant.
    The court made special findings of fact, as follows:
    I. The Cape May Real Estate Company is, and at the time hereinafter referred to was, a corporation created by and Avi«ting under and by virtue of the laws of the State of New Jersey.
    II. On July 17, 1920, the plaintiff, Frank D. Schroth, was appointed receiver of Cape May Real Estate Company by decree of the Court of Chancery of New Jersey, and immediately filed his bond, qualified as receiver, and entered upon the duties of his office.
    
      III. The said plaintiff, Frank D. Schroth, receiver as aforesaid, and the Cape May Beal Estate Company, by its officers and agents, have at all times borne true allegiance to the United States of America, and have.not in any way voluntarily aided, abetted, or given encouragement to rebellion against the said Government.
    IY. The plaintiff, Frank D. Schroth, as receiver of the Cape May Beal Estate Company, is the sole owner of the claim herein presented subject to encumbrances, liens, and transfers appearing herein in Finding XXVII.
    Y. On May 4, 1903, the Cape May Beal Estate Company acquired from Peter Shields and wife, by deed of conveyance, recorded in the office of the clerk of the county of Cape May, New Jersey, in Book 179, p. 393, approximately 390.70 acres of land at Cape May known as “Poverty Beach,” no longer known as “Poverty Beach.” The above-described deed covered a portion of the tract of land requisitioned by the President on December 2, 1918.
    On May 5, 1903, the Cape May Beal Estate Company acquired by deed of survey and conveyance, and recorded in the office of the surveyor general at Burlington, New Jersey, in Book JJ, p. 241, approximately 437.72 acres of other land at Cape May, a portion of which was included within the requisitioned tract above referred to.
    On July 2, 1903, the Cape May Beal Estate Company acquired from the Biparian Commission of the State of New Jersey, by deed recorded in the office of the Biparian Commissioners at Jersey City, New Jersey, in Liber P, p. 389, certain underwater lands at Cape May, New Jersey, extending into the Atlantic Ocean about 2,000 feet.
    On February 2, 1904, the Cape May Beal Estate Company acquired from the Board of Proprietors of West New Jersey a deed of survey and conveyance, recorded ,in the office of the surveyor general at Burlington, New Jersey, Book JJ, p. 252, of surveys, an additional acreage at Cape May of approximately 1,771.81 acres of. land.
    On January 17,1907, the Cape May Beal Estate Company acquired from the Biparian Commission of New Jersey by deed, recorded in Book 216, p. 459, in the office of the clerk of the county of Cape May, New Jersey, a grant of land under water at Cape May, New Jersey, which was adjacent and on the south boundary line of the mainland formerly acquired as aforesaid, beginning at the junction of Beach Avenue and Madison Avenue and extending into the Atlantic Ocean a distance of 4,000 feet.
    Under and by virtue of the above-mentioned conveyances the Cape May Beal Estate Company, on the respective dates thereof, acquired the lands, including the underwater lands, a part of which are embraced in the requisitioned area.
    In 1903 the Cape May Beal Estate Company prepared a plat of a part of its aforesaid lands, dividing the same into lots, blocks, and streets, known as plan A, and filed the said plan in accordance with law. The lands within the streets shown on plan A were dedicated to the city of Cape May, New Jersey.
    YI. By virtue of the authority of the act of Congress, approved October 6, 1917, c. 79, sec. 1, 40 Stat. 345, 371, as amended by the act of July 1, 1918, c. 114, 40 Stat. 704, 720, Woodrow Wilson, President of the United States, on December 2, 1918, issued a proclamation, a copy of which appears as “ Exhibit A” to the plaintiff’s petition in this case by the terms of which the President of the United States, on behalf of the United States of America, did take title to and possession of all that portion of the following-described tract of land, not then owned by the United States, to wit:
    “ Beginning at the point of intersection of the westerly line of Yale Avenue if extended in a northerly direction, with the high-water line of Cold Spring Harbor, which said avenue is shown on a certain plan of lots of the Cape May Beal Estate Company, which said plan is called ‘Plan A’ and is duly recorded in the office of the clerk of the county of Cape May, New Jersey, in Plan Book No. 1, pages 31 and 32; thence in a general easterly, then southerly, and then westerly direction following the high-water line of Cold Spring Harbor, Cold Spring Inlet, and the Atlantic Ocean to its point of intersection with the westerly line of said Yale Avenue extended in a southerly direction; thence in a line of said Yale Avenue to the point of beginning. Containing in all three hundred and forty-nine acres, more or less, together with all improvements on said tract of land not now owned by the United States, and together with all riparian rights, privileges, easements, and other rights whatsoever appurtenant or appertaining in any way to said above-described tract of land, including all privately owned rights in the underwater lands lying between the high-water line of said above-described tract of land and the pierhead or bulkhead lines as such lines are now or may be hereafter established. Said tract or land is more definitely shown on a certain blue print on file in the office of the Solicitor, Department of the Navy, said blue print being marked ‘Exhibit No. 2’ and being attached to a certain report of a board of investigation convened at section base, Cape May, New Jersey, October 9, 1918, to inquire into the proposed acquisition of property at Cape May, New Jersey.”
    VII. Pursuant to the said proclamation of the President of the United States, dated December 2, 1918, possession of and title to the said tract of land was taken on behalf of the United States by the Secretary of the Navy and a written notice thereof under date of January 6, 1919, was served upon the Cape May Eeal Estate Company. A copy of said notice is attached to plaintiff’s petition as “Exhibit B,” and is hereby by reference made a part of this finding. This notice, dated January 6, 1919, was sent by J. B. Patton, commander of district patrols of the fourth naval district, and was addressed to N. Z. Graves, president of the Cape May Eeal Estate Company et al., and was duly received by him.
    VIII. With the said notice from Commander J. B. Patton was enclosed copy of a letter dated December 26, 1918, from F. D. Eoosevelt, Acting Secretary of the Navy, to the commandant of the fourth naval district, Philadelphia, Pa., authorizing and directing the commandant to take possession on behalf of the United States in accordance with the proclamation of the President, of the tract of land described in the proclamation, and there was also enclosed a copy of the President’s proclamation of December 2, 1918. Copies of these enclosures appear as Exhibits “ B ” and “ C ” attached to plaintiff’s petition, and are by reference hereby made a part of this finding.
    IN. Pursuant to the said notice and in accordance with the proclamation of the President, dated December 2, 1918, as aforesaid, and in accordance with the authority con-tamed in the said letter from the Acting Secretary of the Navy, possession of the commandeered tract was surrendered to the United States Government, and thereafter the said property remained in the exclusive possession of the Government.
    X. The tract of land taken over by the President of the United States for and on behalf of the United States, comprising a total area of 336.97 acres, was bounded on the north by Cold Spring Harbor, on the east by Cold Spring-Inlet, on the south by the Atlantic Ocean, and on the west by the westerly line of Yale Avenue. The tract of land was made up of the following more or less distinct portions:
    . 1. Plan A containing 61.59 acres was subdivided into lots fronting on the northerly side of Beach Avenue, lots fronting on the southerly side of New Jersey Avenue and extending from Yale Avenue to Sewells Point. The acreage above mentioned included 23.18 acres in the streets.
    2. Plan B contained 242.38 acres. The streets and lots had been plotted but not physically laid out upon the ground.
    3. An acreage of approximately 33 acres lying between Beach Avenue and the West Jetty known as the accreted lands.
    4. The riparian rights along the Atlantic Ocean from Yale Avenue eastward, a distance of 4,690 feet; and riparian rights along the Cold Spring Harbor frontage extending eastward from Yale Avenue some 4,842 feet.
    All of the above-described property is located east of the west line of Yale Avenue, as appears on the plat annexed to these findings as Exhibit A.
    Several acres in Plan A had eroded by reason of a storm in the summer of 1918 between Yale Avenue and California Avenue.
    XI. Of the total area requisitioned under and by virtue of the President’s proclamation of December 2, 1918, the Cape May Real Estate Company was, at the time of said proclamation, the owner, subject to the liens, assignments, and encumbrances of record referred to hereinafter in Finding XXVII, of the following lots on plan A of the map of the Cape May Real Estate Company, namely:
    
      Nine lots on Beach Avenue, numbers 7181 to 7189, inclusive.
    Twenty-eight lots on the south side of New Jersey Avenue, numbers 5955 to 5967, inclusive; 7216 to 7221, inclusive, 7206 to 7214, inclusive.
    Sixty and one-half lots on the north side of New Jersey Avenue, numbers 5938 to 5952, inclusive; 6346 to 6360, .inclusive; 6791 to 6793, inclusive; 6803 to 6805, inclusive; 7389 to 7411, inclusive; 7250 and a half of 7236. •
    The Cape May Real Estate Company is also the owner, subject to the encumbrances hereinafter referred to in Finding XXVII, of the 242.38 acres contained in plan B; and. of the 33 acres of accreted land between Beach Avenue and the west jetty. The said company was also the owner of the riparian rights along the Atlantic Ocean frontage from Yale Avenue eastward, a distance of 4,690 feet, and of the riparian rights along Cold Spring Harbor from Yale Avenue eastward, a distance of 4,842 feet.
    XII. The title of the Cape May Real Estate Company to the several tracts and parcels of land was acquired, in connection with other lands, and title to the said riparian rights was acquired under a series of deeds and grants, by virtue of which the Cape May Real Estate Company acquired title in fee simple to all of the land embraced within the commandeered area, and a fee-simple title to the riparian rights both along the Atlantic Ocean frontage and along the Cold Spring Harbor frontage.
    XIII. Certain adverse claims of title to the lands of the Cape May Real Estate Company, both within and without the area commandeered under the proclamation of the President, dated December 2, 1918, as aforesaid, having been asserted by one Marion R. Owen and Horatio F. Howard, appropriate proceedings to quiet title were instituted by the plaintiff, Frank D. Schroth, as receiver of Cape May Real Estate Company, against the said Marion R. Owen and Horatio F. Howard, in the court of chancery of the State of New Jersey, in two certain causes known as case No. 1 and case No. 2. The said cases were so proceeded with that a final judgment and decree of the said court of chancery was entered therein under date of September 30, 1925, ordering, adjudging, and decreeing that as to all the lands and premises to which the said defendants made claims, the said defendants, and each of them, have no estate, interest in, or an;/ encumbrance upon the same, or any part thereof, and that in respect to all of said lands and premises so far as relates to any claim thereon by the said defendants, the title of ¿he plaintiff, Frank D. Schroth, receiver of Cape May Real Estate Company, was determined, settled, and decreed to be good.
    XIY. On August 1, 1921, the board on valuation of commandeered property, appointed by the Secretary of the Navy to consider the question of the just compensation due owners of the property and rights therein taken over by the United States for the naval air station at Cape May, New Jersey, under the proclamation of December 2, 1918, filed with the Secretary of the Navy its report in which it recommended an award of $206,080 for the aforesaid property and rights of said Cape May Real Estate Company. Said award was duly approved by the Secretary of the Navy.
    XY. The amount of $206,080, so determined, was unsatisfactory to the plaintiff, Frank D. Schroth, receiver as aforesaid, and by letter dated May 3, 1923, from the plaintiff to the Secretary of the Navy, notice of plaintiff’s refusal to accept the -said award for the land, riparian rights, and property of the Cape May Real Estate Company was given to the Secretary of the Navy, and formal demand made by the plaintiff for payment of seventy-five per centum of said award, amounting to $154,560. Neither that sum nor any part thereof has at any time been paid by the United States to the plaintiff.
    XVI. The property included within the commandeered tract constituted the eastern portion and about one-third of the total area of the development of the Cape May Real Estate Company. This development, sometimes referred to as New Cape May, adjoined the old city of Cape May at Madison Avenue and extends eastwarclly from Madison Avenue to Sewells Point and Cold Spring Inlet; the whole tract being, however, within the municipal limits of the city of Cape May.
    
      XVII. The titles to the various tracts of land, riparian rights, etc., comprising the company’s holdings, were acquired during the period from 1903 to 1907. A considerable portion of the area had originally been marsh or meadow land, which by dredging and filling operations conducted by the company had been brought up to an elevation above high water, especially around the beach front of the harbor. By means of hydraulic dredges a harbor covering over 400 acres was constructed to the north of and adjacent to the property, the excavated material amounting to some 19,785,-580 cubic yards being placed upon the land. Of this total about 7,350,000 cubic yards had been placed upon the portion of the property east of Yale Avenue, referred to as the commandeered area.
    XVIII. The development of the Cape May Real Estate Company was for a high-class seashore resort and was advantageously situated for that purpose. The city of Cape May is located at the southernmost point of the State of New Jersey where the Delaware River, or Delaware Bay, and the Atlantic Ocean meet. It has an attractive all the year around climate tempered by the Gulf Stream. It is part of the mainland and is approached by concrete roads. It has a fine beach with a gradual slope. Both the Pennsylvania Railroad Company and the Reading Railroad Company have steam lines to Cape May. There adjoins the property a harbor, more than 400 acres in extent, about half of which has a depth of water between 30 and 40 feet, and a large portion of the remainder being between 20 and 30 feet in depth. This harbor, dredged by the Cape May Real Estate Company, is connected with the Atlantic Ocean by Cold Spring Inlet, constructed by the United States Government. The inlet was formed by the construction of two large stone walls or jetties extending nearly a mile into the ocean as a protection to the channel between, which was dredged by the Government to a depth of 25 feet at low water.
    XIX. Cold Spring Harbor is the only landlocked harbor of deep water on the Atlantic coast from Sandy Hook to Newport News. It is available as a harbor of refuge for vessels of comparatively large 'draft. It had developed considerable commercial usefulness as a point for fuel and supplies for vessels and as a base for the fishing fleets and for coastal naval operations of the Government, both during the late war and in times of peace. The Corinthian Yacht Club was located fronting on the harbor and adjoining the west side of Yale Avenue immediately adjacent to the portion of the property taken by the Government under the President’s proclamation of December 2, 1918. This club had been practically closed prior to December 2, 1918.
    XX The Cape May Real Estate Company’s development was divided into two major portions: “ Plan A” and “ PJLan B.” “Plan A” consisted of the portion of the property between Madison Avenue and Pittsburgh Avenue and extending from the Atlantic Ocean some 10 or 12 blocks to the northward. “ Plan A” also included all of the land between Beach Avenue and New Jersey Avenue and halfway between New Jersey Avenue and New York Avenue for the entire distance eastward to Sewells Point. About December, 1918, all of the streets in “Plan A” had been actually opened, graded, and surfaced with gravel. Cement curbs and sidewalks had been constructed between Madison Avenue and Pittsburgh Avenue and throughout “ Plan A” a large number of first-class cottages had been constructed. There was no water or sewerage installed in the requisitioned area save a small pipe constructed by the Government to the naval air station along Yale Avenue, and a similar pipe to Sewells Point. In the block between Pittsburgh Avenue and Baltimore Avenue, extending from Beach Avenue to New Jersey Avenue, there had been erected the new Cape May Hotel, a brick structure costing about $1,000,000. Along Beach Avenue for several blocks east of the hotel had been constructed a number of fine residences. Beach Avenue was a broad thoroughfare 102 feet in width extending along the Atlantic Ocean to Sewells Point. On the northerly side of it were constructed cement sidewalk and cement curbing, while on the ocean side it had a twenty-foot boardwalk, protected by a bulkhead, which extended to Sewells Point. New Jersey Avenue was' likewise graded its entire distance and had a gravel surface as far eastward as California Avenue. The cross streets, running north and south, were graded and improved with cement curbs and sidewalks from Beach Avenue to New Jersey Avenue.
    XXI. “ Plan B ” was the portion of the property outside of “ Plan A.” It was being made ready for sale, and prior to December 2, 1918, had been brought up to the established grade, with the exception of certain areas. The portion of “ Plan B ” east of Yale Avenue (in the commandeered area) had been completely filled with the exception of the two small areas designated as “ Low Area No. 2 ” and “ Low Area No. 4.” The established grade at the middle line of the tract was between 12 and 13 feet above low water and sloping slightly toward the beach and toward the harbor to a point 8 feet above low water for purposes of drainage. The low areas No. 2 and No. 4 above mentioned would have required about 244,000 cubic yards to br,ing them to the established grade.
    XXII. The western boundary of the tract included-in the President’s proclamation of December 2, 1918, was the westerly line of Yale Avenue. Yale Avenue was physically„ opened, graded, and surfaced with gravel throughout its entire length from Beach Avenue to the harbor. The cement curbs and sidewalks had been constructed. This avenue was the means of approach to the Corinthian Yacht Club which fronted on the harbor. The fence erected by the Government was located on the easterly line of Yale Avenue and the street was not in fact closed to public use. The whole of the bed of Yale Avenue, however, was within the lines of the commandeered tract.
    XXIII. At Sewells Point had been erected a large casino or amusement pavilion adjacent to the harbor and the shore end.of Cold Spring Inlet. This casino was destroyed by fire on July 4, 1918, and had not been rebuilt prior to December 2, 1918. At this point also was located by the city of Cape May a wharf or boat landing which was the terminus of a line of pleasure boats which operated between Sewells Point and Wildwood Crest, a near-by summer resort. This landing had served as a terminus for street cars which formerly ran to Sewells Point, but which line had not been operated since 1916.
    
      XXIV. An electric street railway, known as Cape May, Delaware Bay & Sewells Point Street Railway Company had, prior to 1911, operated a line of passenger cars from Cape May, partly along Beach Avenue to Madison Avenue, and thence along New Jersey Avenue to Sewells Point. During the period of the war, while the United States Government was in occupation under a nominal lease of the premises afterwards commandeered, the Government made use of the tracks and other facilities for the transportation of materials and supplies to the Government base at Sewells Point.
    XXV. During the several years constituting the period of the World War market conditions affecting seashore developments were adverse. The city of Cape May was a more popular summer resort sixteen or eighteen years prior to the requisition than at the time of said requisition. There was only one residence on the requisitioned area, which was a stucco house, in a state of disrepair. Following the armistice in November of 1918 conditions for the development and marketing of seashore property became more favorable.
    XXVI. The total holdings of the Cape May Real Estate Company within the lines of “ Plan A” and “ Plan B,” and together with the accreted area of 33 acres and the riparian rights along the Atlantic Ocean frontage and the riparian rights along the harbor frontage, together with the bed of Tale Avenue, all within the commandeered area, as of December 2, 1918, were of the fair and reasonable market value in the aggregate of $365,500.
    XXVII. The property of the Cape May Real Estate Company lying within the bounds and limitations of the tract of land described in the proclamation of the President, dated December 2, 1918 (No. 1504), as of the date of the commandeering by the United States was subject, inter alia, to the following encumbrances and liens:
    (1) Mortgage deed of trust to the Colonial Trust Company, dated July 1st, 1907, and recorded in Bk. 180, folio 207, made to secure the issue of 3,500 bonds of $1,000.00 each. The same covers all the property of the said company on Plan A.
    (2) Four mortgages to Nelson Z. Graves, dated and recorded a's follows:
    
      (a) Dated February 21st, 1912, and recorded in Bk. 106, folio 146, amount $250,000.00, with interest at 6%.
    (&) Dated January 8th, 1913, and recorded in Bk. 112, folio 320, for $75,000.00, with interest at 6%.
    (■o) Dated January 14th, 1913, and recorded in Bk. 120, folio 73, for $30,000.00, with interest at 6%.
    
      (d) Dated February 14th, 1914, and recorded in Bk. 122, folio 472, for $25,000.00, with interest at 6%.
    All of which said last-mentioned four mortgages are now vested in the Mutual Liquidating Company by virtue of an assignment of the same, dated August 12th, 1915, and recorded in Book of Assignment No. 16, folio 1.
    (3) Judgment, Ooloniod Trust Company, Trustee, v. Gape May Real Estate Go. New Jersey Supreme Court, November term, 1910, page 289, amount $357,950.21, with interest at 6% and costs, dated December 29th, 1910, Judgment, vol. 5, page 174.
    (4) Judgment, Peter Shields v. Gape May Real Estate Qompcmy. New Jersey Supreme Court, June term, 1917, folio 315; amount $62,083.50, with interest at 6% and costs, dated October 25th, 1917, Judgment, vol. 10, page 408. Now pending on rule to show cause why judgment should not be opened.
    Assignment to Henry Darlington, jr., dated August 5th, 1918, and recorded in Book H of Assignments, page 598.
    XXVIII. On June 25, 1907, a contract was executed by the Cape May Real Estate Company in the form appearing as Exhibit A to defendant’s counterclaim, which is by reference made a part hereof. This document was not signed or executed by anyone on behalf of the United States. This document recites the appropriation of $311,000 for the improvement of Cold Spring Inlet by the act of Congress approved March 2, 1907 (Public, No. 168), and recites further that, in consideration of the expenditure of said appropriation in the improvement of Cold Spring Inlet, the company accepted the proviso of the said act of Congress, and further agreed to construct prior to September 30, 1909, by excavation or otherwise, immediately inshore of s'aid Cold Spring Inlet and connected therewith, a harbor suitable for commerce, of which at least 400 acres shall have a depth of not less than thirty feet at mean low water. The time for performing this work was later extended to September 30, 1914.
    XXIX. Before the time for finishing the harbor work was extended to September 30, 1914, the whole situation was reviewed in a letter from Major R. R. Raymond, in charge of the U. S. Engineers Corps for the Wilmington district, who, on May 17,1911, sent to Mr. N. Z. Graves, the president of the Cape May Real Estate Company, a letter. This letter reads in part as follows
    “ The question to be determined is, What work is necessary to make the present harbor available? About 250 acres of the basin is now dredged to 30 feet; the Government channel is to be 25 feet deep.
    
      “ To make the present harbor available, therefore, requires the dredging of the Government channel to twenty-five feet and the dredging of a channel connecting the Government channel with the basin. The dredging to be done at the expense of the Cape May Real Estate Company to accomplish this is about 1,360,000 cubic yards, which, at, say, 6 cents per yard, will cost $81,600.”
    XXX. The amount of dredging involved in excavating the area of 400 acres to a depth of thirty feet would be 19,360,000 cubic yards. The Cape May Real Estate Company actually excavated from the harbor a total of 19,785,580 cubic yards. This excess yardage was due to the fact that a portion of the harbor was dredged to a depth in excess of thirty feet, and to the further fact that part of the dredging was in an area outside of the 400 acres.
    XXXI. When the dredging work was discontinued in April, 1913, there would have been required additional excavations of 3,900,000 cubic yards to bring the harbor to a continuous depth of thirty feet over an area of 400 acres. The channel or inlet between the jetties which, for the distance of a mile, formed the entrance to the harbor from the ocean was dredged by the Government to a depth of twenty-five feet, and there is no authorization or plan for any greater depth. The availability of the harbor for commerce would be limited by the depth of the entrance channel — twenty-five feet.
    
      XXXII. The amount of dredging or excavation necessary to bring the harbor to a continuous area, so that all of the 400 acres would have a depth of at least 25 feet, corresponding to the depth of the entrance channel, would be 2,500,000 cubic yards.
    XXXIII. In May, 1911, the portion of the harbor already dredged to a depth of thirty feet was about 250 acres, and a large portion of the remaining area had a depth of between twenty feet and thirty feet. The work still necessary to make the harbor, as it then existed, available and suitable for commerce and navigation consisted of the dredging by the Government of the channel between the jetties to a depth of twenty-five feet, and the dredging of a channel from the harbor basin to the shore end of the jetties. According to the surveys and records of the United States Engineer’s office at Wilmington, the amount of further dredging to be done by the Cape May Real Estate Company to accomplish this amounted to 1,360,000 cubic yards.
    XXXIY. Pursuant to the recommendations of the United States Engineer’s office, the Cape May Real Estate Company, through its president, Mr. Graves, proceeded to acquire a dredge and perform the work in accordance with the directions of that office. All of the dredging^ work indicated in the letter of Major Raymond as necessary to make the harbor available was actually done. The Government channel between the jetties was brought by the Government to the contemplated depth of twenty-five feet; and the Cape May Real Estate Company completed the channel from the harbor basin proper to the shore end of the jetties, connecting with the Government channel. The Cape May Real Estate Company dredged the channel to a depth of thirty feet and 400 feet to 600 feet in width, excavating or dredging a total of 2,750,000 cubic yards, about twice the amount specified by Major Raymond; the excess being done outside the line of the channel but within the lines of the harbor.
    XXXY. No dredging work was done in the harbor by the Cape May Real Estate Company after April, 1913. The extension of time for finishing the harbor work under the arrangement with the Government expired September 30,
    
      
      
    
    
      1914. None of the dredging work in the harbor was ever actually done by the Government or on its behalf.
    XXXVI. There was no evidence of the market prjce for doing dredging work in the vicinity of Cold Spring Inlet in the years 1913 or 1914.
    It appears that the cost of doing dredging work in this general vicinity was about the same during the years 1913, 1914, and 1915. The cost of doing such dredging work was nearly uniform from the year 1900 up to 1914 on an average, any slight raise in costs being offset by the advance in the state of the art. The dredging work in this harbor was about the simplest type of hydraulic dredging, and the sum of sis cents per cubic yard would have been sufficient to cover the cost of doing such dredging in the harbor whether the work was done by the Cape May Eeal Estate Company or by the Government.
    The court decided that plaintiff was entitled to recover $365,500 with interest from December 2, V918, until paid. Counterclaim dismissed.
   Moss, Judge,

delivered the opinion of the court:

Plaintiff, Frank D. Schroth, receiver of Cape May Eeal Estate Company, is suing to recover the fair and reasonable market value as of December 2, 1918, of the property taken on that date. The defendant has interposed herein a counterclaim based on the following transaction: On June 25, 1907, the Cape May Eeal Estate Company entered into a contract with the Government by which it undertook to perform the dredging work in the construction of a harbor suitable for commerce, of which 400 acres should have a depth of 30 feet at mean low-water mark. The work was to be completed September 30, 1909. The time was subsequently extended to September 30, 1914. In May, 1911, the portion of the harbor already dredged to a depth of 30 feet was about 250,acres, and a large portion of the remaining area had a depth of between 20 feet and 30 feet. On and after that date the work was under the supervision and direction of Major Eaymond, United States engineer, and was done in conformity with the requirements of his office. While the 30-foot depth was not reached over the entire 400-acre area, all the dredging necessary to make the harbor suitable for commerce was actually done. There is no evidence of actual damage to the Government because of the fact that the harbor was not completed throughout the entire area to the depth of 30 feet. There can be no recovery herein on account of the counterclaim.

The sole remaining question is the fair and reasonable market value of the property taken by the Government as of December 2, 1918, the day and date of taking. The court has found such value to be $365,500.

Gbaham, Judge-; Booth, Judge; and Campbell, GMef Justice, concur.  