
    OREGON-WASHINGTON BRIDGE COMPANY, A CORPORATION, v. THE UNITED STATES
    [No. 45760.
    Decided October 1, 1945]
    
      
      The Reporter’s statement of the case:
    
      Mr. Charles T. TJonworth for plaintiff.
    
      Mr. Brice Toole, with whom was Mr. Assistant Attorney General Francis M. Shea, for the defendant.
   Littleton, Judge,

delivered the opinion of the court:

Plaintiff, since 1924, has owned and operated a toll bridge across the Columbia River between Hood River, Oregon, and White Salmon, Washington. In 1934 defendant commenced construction of the Bonneville Dam across the’ Columbia River about twenty-five miles downstream from the bridge. During the three years from 1934 to 1936 a controversy ensued as to whether the defendant was obligated to compensate plaintiff for the cost of altering and reconstructing certain parts of the bridge, because of the construction of the dam, so as to make the bridge safe against increased pressure of ice at the new water level in the pool which was to be created by the Bonneville Dam. The Government advised plaintiff that when the dam was completed the elevation of the water at plaintiff’s bridge would be twenty-seven feet higher than it had been under natural conditions.

Plaintiff took the position that the Bonneville project was not essentially a navigation project but was primarily a hydro-electric project and that consequently the Government was obligated to pay just compensation for damages to the bridge caused by the raising of the water. The Government took the position that it was under no obligation to pay plaintiff anything for the taking of property rights because the Bonneville project was primarily a navigation improvement and that plaintiff was entitled to no compensation for damages by reason of the raising of the water level.

As set forth in findings 3 to 6, inclusive, negotiations were carried on between the parties and conferences were held with reference to plaintiff’s claim for compensation of $500,-000. As a result of the negotiations the defendant, on May 22,1936, offered plaintiff a lump sum of $250,000 for flowage easement in compromise and full settlement of plaintiff’s claim by reason of the construction and maintenance of Bonneville Dam. On May 25, 1936, plaintiff advised defendant that if it would increase its offer to $252,831 plaintiff would accept it. This was agreed to, and that amount was paid April 30, 1937, after the execution and delivery by plaintiff of the flowage easement deeds of November 21,1936.

This was definitely a compromise settlement of the matters in controversy between the parties. There were many items of value, costs, and expenses, in large sums, which both the plaintiff and the Government engineer obviously considered, but there was no itemization of the amount offered and paid by defendant and there was no understanding or agreement between the parties as to what items or amounts should go to make up the total to be paid. Plaintiff was not advised at any time prior to consummation of the settlement agreements and the payment of the compromise sum of $252,831 that any specific amount had been included therein by defendant for the cost of reinforcing piers 8 and 9 against ice pressure only. Moreover, as set forth in finding 5, both parties knew during the negotiations for settlement of plaintiff’s claim that it would be necessary to install a lift span in the bridge at piers 8 and 9 to accommodate seagoing vessels in the pool created by the dam and that these piers would have to be altered and reconstructed to carry the load of this lift span, and that, in September 1936, before the settlement agreements of November 21 were prepared and executed, plaintiff agreed to arid did proceed with the work of altering and reinforcing piers 8 and 9 for the purpose of supporting the lift span without awaiting action by Congress on the matter of reimbursement by the Government for this cost. In these circumstances plaintiff had no reason to believe and certainly there was no understanding or agreement that any portion of the sum paid in compromise and settlement of plaintiff’s claim for compensation, other than for navigation alterations, would be deducted by defendant from the cost to plaintiff of such navigation alterations in the event Congress should later agree to reimburse plaintiff therefor. The release exacted by the Government and given by plaintiff in the deeds (finding 6), with the reservation by plaintiff of the right to claim reimbursement for the cost of navigation alterations to piers 8 and 9, precludes the Government, in the absence of fraud or mistake, from now claiming the right to deduct from such navigation alteration costs any portion of the amount previously paid in compromises of other claims of plaintiff for compensation.

The act of Congress enacted August 16, 1937 (finding 7), fifteen months after the compromise settlement of $252,831, the provisions of which act were well known to the War Department during its consideration, made no exception as to full reimbursement to plaintiff “for the actual cost of such alterations.”

For the reasons stated hereinabove, the War Department was not authorized to reopen the compromise settlement agreed upon May 25,1936, and deduct $14,000 of the amount previously paid plaintiff thereunder from the actual costs due it under the act of August 16,1937, and plaintiff is entitled to judgment for this amount.

The last two items of plaintiff’s claim for $4,052.35 and $4,946.49 representing amounts paid by plaintiff to its president, E. M. Chandler, for engineering services actually performed by him in connection with piers 8 and 9 and the lift span (findings 14 to 18) are submitted by defendant on the facts without argument. These expenses were necessary and were actually paid. They are shown by the uncontradicted evidence to have been entirely reasonable. The engineering services involved were necessary in connection with the work required on the bridge structures, and had plaintiff employed an engineer outside its own organization the expenses for such services would have been at least as much as it paid its president therefor. Plaintiff is therefore entitled to recover on these two items a total of $8,998.84.

Judgment is entered in favor of plaintiff for $22,998.84. It is so ordered.

Whitaker, Judge; and Whaley, Chief Justice, concur.

Madden, Judge; and Jones, Judge, took no part in the decision of this case.  