“All that is required is such reasonable certainty that damages may not be based wholly upon speculation,” and “may be estimated with a fair degree of accuracy.”
How later courts described this case
- “All that is required is such reasonable certainty that damages may not be based wholly upon speculation,” and “may be estimated with a fair degree of accuracy.”
Written by the judges who cited it.
The opinion
Whitaker, Judge,
dissenting in part:
I regret I am unable to concur with the other members of the court in the recommendation made in this matter. They recommend payment to plaintiff for loss of anticipated profits during two periods: the first, the period of partially restricted operations; and the second, the period of totally restricted operations.
During the first period plaintiff’s operations were restricted only because he was required to haul talc from his mine between the hours of 4: 30 p. m. and 7:30 a. m., instead of during the daytime. Such a restriction could hardly account for a drop in profits from $9,824.24 to $483.63.
This period of restricted operations was from June 1944 to April 1, 1945. The opinion of the majority recognizes *237 that the market for talc fluctuates and did fluctuate in 1944 and 1945 and also in 1946. In finding 27 the court finds:
It is not clear that the plaintiff could have sold profitably his estimated 500 tons per month during the period he was restricted by the operation of the Saline Valley Aerial Gunnery Range.
In addition to this, the testimony shows that in the latter part of 1944 plaintiff canceled his prior commitments for the sale of talc, and was unable to arrange others. As a result, plaintiff’s production was drastically curtailed, reaching a low of 32 tons in February 1945. On March 20, 1945, there was a slide of approximately 3,000 tons of the overburden which blocked the portals to the mine, and prevented further mining until this slide was removed. It was not removed until the mine was reopened in 1953, over six years after restrictions had been removed. Plaintiff’s mine was at a remote locality and miners were not readily available.
It would seem, therefore, that other things contributed to the loss of profits and that the restriction placed on plaintiff’s hauling operations during the first period by no means accounted for all of the decline in profits from $9,824.24 to the insignificant amount of $483.63.
Although I do not agree with the majority on the extent of the effect of the restrictions on his hauling operations, I do think plaintiff is entitled to recover whatever damages he suffered on account of those restrictions. A part of this road over which plaintiff had to haul his talc was in the limits of the Saline Valley Aerial Gunnery Range and, therefore, plaintiff’s right of ingress and egress to his mine was impaired by the establishment of this range, and for this plaintiff is entitled to compensation as for a taking under the power of eminent domain. Causby et al. v. United States, 104 C. Cls. 342 ; 328 U. S. 256 ; 109 C. Cls. 768 .
The amount to which plaintiff is entitled for this taking is extremely difficult to determine, but I feel quite sure that this restriction on his hauling operations did not result in the entire decline in his profits. I would allow plaintiff between 10 and 20 percent of the decline in anticipated *238 profits as compensation for this taking. This would be, roughly, $1,000 to $2,000 for the first period.
In my opinion plaintiff is entitled to approximately the same amount for the next period, because he is entitled to compensation during this period only because his right of ingress and egress was impaired. He is not entitled to recover because the commanding officer of the gunnery range told the plaintiff to vacate the mine premises. This officer had no authority whatever to tell plaintiff to do this. The mine was not located in the gunnery range. The limit of the authority of this officer was to keep people out of the gunnery range. He had absolutely no authority to drive people off of their property if it lay without the gunnery range.
It is axiomatic that the Government is liable for the taking of property only if it is taken by an authorized agent. The Government has not and could not possibly subject itself to liability for the acts of unauthorized agents in the multitudinous operations of our Federal Government. Hundreds of thousands of agents are employed. If the Government subjected itself to liability for the acts of all of these agents, whether they were authorized to act or not, it would soon run into bankruptcy.
Had this plaintiff brought his suit in this court under our general jurisdictional act, seeking compensation for the taking of his property on account of this action of the commander of the gunnery range, we would have dismissed his suit, of course. What the majority opinion of this court has done is to recommend to Congress that this plaintiff be paid for an act for which no other citizen of the country would have been entitled to recover. I am quite sure that Congress does not want to prefer this plaintiff over citizens generally.
For these reasons I think that Congress should award to this plaintiff only such damages as it thinks were the result of the restricted hauling operations to which he was subjected by reason of the fact that the road to his mine ran in part through this gunnery range.
I would limit the amount to be paid plaintiff to not more than $4,000 at the most.
*239 FINDINGS OF FACT
The court, having considered the evidence, the briefs and argument of counsel, and the report of Commissioner Donald E. Lane, makes the following findings of fact:
1. In June 1953, the House of Eepresentatives, 83d Congress, 1st Session, adopted House Eesolution 255, and transmitted a copy thereof, together with a copy of bill H. E. 1114 and a copy of House Eeport No. 541, to this court. The text of H. Ees. 255 is as follows:
RESOLUTION
Resolved, That the bill (H. E. 1114) entitled “A bill for the relief of Wright H. Huntley”, together with all accompanying papers, is hereby referred to the United States Court of Claims pursuant to sections 1492 and 2509 of title 28, United States Code; and said court shall proceed expeditiously with the same in accordance with the provisions of said sections and report to the House, at the earliest practicable date, giving such findings of fact and conclusions thereon as shall be sufficient to inform the Congress of the nature and character of the demand, as a claim legal or equitable, against the United States, and the amount, if any, legally or equitably due from the United States to the claimant.
The text of H. E. 1114 is as follows:
A BILL
For the relief of Wright H. Huntley.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Secretary of the Treasury is authorized and directed to pay, out of any money in the Treasury not otherwise appropriated, to Wright H. Huntley, Bishop, California, a sum consisting of—
(a) the amount of $89,751.43, in full settlement of all claims of the said Wright H. Huntley against the United States for certain losses and excess costs incurred, during the period beginning June 6,1944, and ending March 31,1945, because the said Wright H. Huntley was compelled to resort to half-time (night) hauling operations over unsuitable alternate roads, in the operation of the Huntley Talc *240 Mine, Saline Valley, Inyo County, California, as a result of the establishment by the United States of the Saline Valley Aerial Gunnery Range which included such mine and certain roads leading thereto; and
(b) an amount in full settlement of all such claims of the said Wright H. Huntley for such losses and excess costs which were incurred during the period beginning April 1,1945, and ending as of the date immediately preceding the date of the enactment of this Act. Such amount shall be computed at the rate of $4,503.73 per month:
Provide, Thjat no part of the amount approproated in this act in excess of 10 per centum thereof shall be paid or delivered to or recieve by any agent or attorney on accoutn of servies rendered in Act shall be deemed exceeding $1,000.
2. The plaintiff, a resident of the State of California during the period of time pertinent to this claim, was engaged in the mining business, primarily as lessee and operator of a talc mine. Talc is a mineral containing silica, alumina, and magnesia, with traces of other compounds, and is used, after refining, in the preparation of pharmaceuticals, foot powders, insulators, and other products.
3. On July 12, 1941, the plaintiff became lessee of the White Eagle Talc Mine, situated on the east side of the Inyo Range, 1 mile from the mouth of Willow Creek, in the Saline Valley, in Inyo County, California. The lessor and owner was one Elmer Oaks. The lease covered the mine and mining property, together with appurtenances, including all water and timber rights for mining domestic uses. Plaintiff-lessee agreed to pay lessor 50 cents per ton for all talc taken from the property, and agreed to pay a minimum of $50 royalty a month. The lease was to run until forfeited by violation of its covenants.
4. Funds were advanced to the plaintiff by the Sierra Talc Company for the initial development of the White Eagle Talc Mine. Plaintiff thereupon put in necessary trails and equipment including an aerial tramway of some 2,500 feet. *241 to ore bunkers, trestles or chutes, and also improved the mining camp with additional buildings and water lines. The aerial tramway was for the purpose of delivering talc from the mine on a hill downward to a lower bunker for loading by gravity into trucks used for hauling the talc to mills and railroads beyond the Inyo Eange mountains. The plaintiff commenced open-pit surface mining operations in 1941, and sold talc to the Sierra Talc Company. The amounts of talc purchased by Sierra Talc Company from the plaintiff were as follows:
Tons Tona
June 1941_ 6.25 Sept. 1942_108.125
Aug. 1941_ 19.525 Oct. 1942_ 81.3
Sept. 1943_ 179. 750 Nov. 1942_ 62. 025
Oet. 1941_177.85 Dec. 1942_114. 575
Nov. 1941_ 692.975 Jan. 1943_ 28.05
Dec. 1941_ 384.625 Apr. 1943_162.07
Jan. 1942_ 244.6 May 1943_ 53.91
Feb. 1942_ 405.275 July 1943_ 54.375
Mar. 1942 _ 63.025 Aug. 1943_ 156.275
Apr. 1942_ 56.77 Sept. 1943_ 56.03
May 1942_ 108. 565 Oet. 1943_ 54.375
June 1942_ 4. 975 Jan. 1945_ 99.15
On September 15, 1942 plaintiff wrote that for the last six months he had not been able to deliver over 100 tons a month because of difficult road conditions.
5. Formal records and books on operation of the White Eagle Talc Mine, operated by the plaintiff as Huntley Talc Mine, were started as of July 1, 1943. These records indicate a monthly production of talc as follows:
Tons Tons
July 1943_ 194.576 June 1944_212. 875
Aug. 1943_ 264.410 July 1944_ 105. 500
Sept 1943_ 163.440 Aug. 1944_ 259.120
Oct. 1943_ 54.375 Sept. 1944_371.165
Nov. 1943_ 167.570 Oct. 1944_ 148.685
Dec. 1943_ 135.490 Nov. 1944_ 137. 545
Jan. 1944_ 273.135 Dec. 1944_111. 445
Feb. 1944_171. 536 Jan. 1945_ 144.470
Mar. 1944_ 147.250 Feb. 1945_ 31.925
Apr. 1944_ 437. 515 Mar. 1945 _ 73,675
May 1944_ 500.815
6. The talc produced at the White Eagle Talc Mine was hauled out of the Saline Valley by motor trucks. At times, *242 the plaintiff used bis own trucks, and at other times he used contract truckers. The south road out of the valley, completed in April 1943, leads to the town of Keeler, a distance of approximately 75 miles from the mine camp, and the site of a spur of the Southern Pacific Eailroad. The north road out of the valley leads to the town of Zurich near Bigpine, California. A talc mill was located at Zurich, and also a spur of the Southern Pacific Eail-road, Zurich being a distance of approximately 40 miles from the mine camp. Both the south road and the north road were normally in poor condition due to little or no maintenance, and also due to washouts, to slides and snow in the mountain passes, and to heavy trucking.
7. The plaintiff knew as early as May 10,1944, that the Air Force planned to establish an aerial gunnery range in the Saline Valley which would prevent plaintiff from using the south road for trucking talc. The aerial gunnery range comprised some 558,000 acres of land in Saline Valley to which the Government acquired exclusive rights by a condemnation proceeding resulting in an order of immediate possession as to property described in an amended complaint, the order being dated August 2, 1944. The Saline Valley and the aerial gunnery range had never been fully surveyed, and consequently it was not definitely ascertained whether the White Eagle Talc Mine was within or outside the range area.
8. On June 8,1944, the plaintiff met with Government representatives in San Francisco at the office of the Division Engineer, War Department. Eepresentatives of the Fourth Air Force, the War Production Board, and the Ee-construction Finance Corporation met with the War Department mining engineer and the plaintiff. The conferees discussed the strategic importance of talc from the White Eagle Talc Mine, and the problem of continued use of the north road out of Saline Valley for the hauling of talc from the plaintiff’s mine to mills and railheads out of the valley. The north road was located near the west boundary of the Saline Valley, but some 20 miles of the north road was definitely within the aerial gunnery range area. *243 Use of the south road was impossible due to air-to-air gunnery in the south road area.
9. The conferees concluded and recommended that use of any road leading northerly from the Huntley Talc Mine would be restricted between the hours of 7:30 a. m. and 4:30 p. m. The plaintiff was thus required to curtail his talc hauling operations to the period between 4:30 p. m. and 7:30 a. m. and to the north road only.
10. At the June 8,1944 conference, the Division Engineer requested the plaintiff to furnish data from which an appraisal of the damages due to curtailed hauling operations could be made. A definite promise that damages, compensation, or the like, would be paid was neither made nor authorized. On June 9, 1944, the Division Engineer prepared and distributed the following memorandum to the conferees:
1. On Thursday, 8 June 1944, a joint meeting was held in the office of King C. Laylander, Eeal Estate Division, Mining Engineer, at 231 Sansome Street, Eoom 505, San Francisco, California.
Present were:
Major H. A. Harris, Fourth Air Force.
Captain M. C. Lakenan, Fourth Air Force.
Mr. A. G. Keating, War Production Board.
Mr. B. L. Eust, Eeconstruction Finance Corp.
Mr. C. W. Eastman, Eeconstruction Finance Corp.
Mr. Wright H. Huntley, Talc mine owner.
Mr. K. C. Laylander, Mining Engineer, Eeal Estate Division.
2. The subject discussed was principally the matter of continued use of the north road from the Huntley Talc mine, located near the west boundary of Saline Valley, and traversing about 20 miles of the northwest corner of the Saline Valley Aerial Gunnery Eange.
3. The object of the meeting was to develop the critical nature of the mineral product of the Huntley Talc mine, and to arrive at a workable solution for the continued use of the access road, not interfering unnecessarily with the operation of the Air to Air Gunnery Eange.
4. The representatives of the E. F. C. stated that they had recently made an examination of the talc mine, in connection with an application of the owner for an E. F. C. development loan. They stated that they were shown *244 talc of apparently block grade, this product being highly critical. Samples had been sent by them to the Bureau of Standards at Washington, D. C., for testing, but results of such testing were not yet available. The R. F. C. Mining Engineer, Mr. Eastman, stated that he believed all of the product shipped by the Huntley Talc Mine was of strategic importance.
5. Mr. Keating of the W. P. B. concurred in the opinion of R. F. C. Engineers, that if steatite grade talc and block talc were being or could be produced from this property, that this product was of a highly critical nature.
6. The critical character of the product being established, the matter of ways and means of continued hauling of the product was discussed, and it was established that unrestricted use of the access road would place trucks in jeopardy on the one hand, or require the deletion of an area about 8 miles wide and 20 miles long, the latter being inimical to the proper use of the Gunnery Range by the Air Force.
7. Mr. Huntley set forth the claim that the continued use of the present road over which he is hauling, had been carried on only as a-temporary expedient pending reconditioning of either the south road through Saline Valley, or the fixing up of the old north wagon road, which traverses a much better country for road maintenance, as well as traversing a pass through the mountains 1900 feet lower than the one being used. The present high elevation pass is normally closed by snow at various periods of the winter, as well as being so rocky and rough as to continually break down his present hauling equipment. He stated that the Public Roads Administration had actually started work on grading the north access road when stopped by the War Department. He further stated that the County Road Commissioners had refused any assistance for access road after the present Gunnery Range was filed on.
8. The positive conclusions or recommendations of this meeting were as follows:
a. Use of any road leading northerly from the Huntley Talc mine would be restricted between the hours of 7:30 A. M. and 4:30 P. M.
b. The Air Force would issue necessary instructions to protect this area during the hours of use for hauling or road work construction, and that any construction or maintenance on access road in this area would be so planned as to leave neither personnel nor equipment in this area between the hours of 7:30 A. M. and 4:30 P. M.
*245 c. Mr. Keating of the W. P. B. stated that he would render any assistance within their jurisdiction to aid in the procurement of additional equipment to facilitate the hauling of the extra tonnage during the shorter operating period allowed.
d. The R. F. C. Engineers stated that they would notify their Department of the conditions agreed upon, so as to least affect any decision by their organization relative to the loan applied for by Mr. Huntley.
e. Mr. Laylander requested supporting data from Mr. Huntley from which appraisal can be made of damages to Mr. Huntley, due to the curtailing of his hauling operations.
9. Meeting adjourned 3:30 P. M., 8 June 1944.
11. By a letter dated June 10,1944 addressed to the U. S. Division Engineer in San Francisco, plaintiff advised that he was limiting the operation of his hauling trucks over roads within the aerial gunnery range to the hours of 4:30 p. m. to 7:30 a. m. each day of the week. . Plaintiff enclosed a summary of his mining operations, and requested definite information on what procedure to follow in filing a claim for ultimate losses and damages.
12. The plaintiff operated the White Eagle Talc Mine, but limited the hauling operations to the agreed evening ;and night period from 4:30 p. m. to 7:30 a. m. from June 10,1944, to about April 1,1945. On or about the latter date the plaintiff was called to Muroc Air Base, and was told by the commanding officer that the White Eagle Talc Mine was in the most dangerous part of the aerial gunnery range, and that he could not be protected there, and to get out. Plaintiff had miscellaneous equipment taken out of the mine, and abandoned the mine camp by April 1, 1945.
13. The plaintiff was advised by a communication dated February 21, 1946 from the War Department Real Estate Division that the Saline Yalley Aerial Gunnery Range would be used no longer for that purpose, and that no further restriction as to access or operation of the plaintiff’s mining interests in the valley existed.
14. The plaintiff did not resume talc mining at White Eagle Talc Mine until late in 1952, at which time Inyo County began repair and maintenance of the access roads. Plaintiff requested improvement of the access roads both *246 before and after the February 1946 notice of removal of restrictions in the Saline Valley.
15.Plaintiff’s operation of the White Eagle Talc Mine in 1953 produced talc in the following amounts:
Tons Tons
Jan. 1953_ 85 July 1953_ 250.34
Feb. 1953_ 88.7 Aug. 1953_125.215.
Mar. 1953_122.135 Sept. 1953_144.34
Apr. 1953_ 29.04 Oct. 1953_181.07
May 1953_310.945 Nov. 1953_ 335.3
June 1953_ 268.0 Dec. 1953_ 348. 65
16. The White Eagle Talc Mine was not physically damaged in any manner by the operation of the aerial gunnery range in Saline Valley. Likewise the mine access roads in Saline Valley were not physically damaged in any manner by the operation of the aerial gunnery range. The repair and maintenance of said roads were prevented by restrictions resulting from operation of the aerial gunnery range from June 1944 through February 1946 only.
17. The remote location of the White Eagle Talc Mine, and the necessity of using unimproved roads through desert country and through mountain passes, rendered it difficult for plaintiff to secure and retain competent labor, and difficult to efficiently transport talc to the mills, both before and' after the. Air Force operation of the Saline Valley Aerial-Gunnery Eange in 1944,1945, and early 1946.
18. The restriction of the plaintiff to talc hauling at night from June 1944 to April 1, 1945 (10 months), and the restriction of all plaintiff’s talc mining and hauling operations from April 1,1945, to February 21,1946 (11 months) caused' the plaintiff to temporarily lose some probable profits.
19. On October 5,1944, plaintiff leased several of his talc hauling trucks for use on a government project at Inyokern, California. On March 20, 1945, an extensive slide at the White Eagle Talc Mine covered some of the mine entrances. The slide was not caused by War Department restrictions-nor was it caused by Air Force use of the Saline Valley Aerial Gunnery Eange.
20. Plaintiff has not been paid on any of the claims he presented to the War Department for compensation for losses-caused by restrictions placed on his talc mining operations..
*247 21. For the 6-month period immediately preceding the road use restrictions, the White Eagle Talc Mine averaged 277.623 tons per month producing a profit of $1,273.90 per month, or a profit of $4,588 per ton. These averages are computed from the revised audited schedules shown in plaintiff’s exhibit 1.
22. For the 10-month period in which plaintiff’s use of the north road was partially restricted, the White Eagle Talc Mine averaged 159.641 tons per month producing a profit of $48.36 per month, or a profit of $0,302 per ton.
23. For the 11-month period in which operation of the White Eagle Talc Mine was fully restricted, production and profits were nil.
24. For the 6-month period starting January 1,1953, when plaintiff resumed operation of the White Eagle Talc Mine, the monthly production of talc was as shown in finding 15, and the production in this period averaged 150.636 tons per month.
25. The operations of the White Eagle Talc Mine are summarized as follows:
A. During 6-month period before restrictions—
Production averaged 277.623 tons per month.
Profits averaged $1,273.90 per month.
Profits averaged $4,588 per ton.
E. During 10-month period under hauling restrictions—
Production averaged 159.641 tons per month.
Profits averaged $48.36 per month.
Profits averaged $0,302 per ton.
C. During 11-month period under full restrictions—
No production.
No profits.
D. During 6-month period when unrestricted operations were resumed—
Production averaged 150.636 tons per month.
26. Under unrestricted operations, production decreased from 277.623 tons per month to 150.636 tons per month. The average of these two rates is 214.129 tons per month, and this average is a fair approximation of what the White Eagle Talc Mine might have produced but for the government restrictions.
27. The market for talc fluctuates, and did fluctuate in 1944,1945, and 1946. It is not clear that the plaintiff could *248 have sold profitably his estimated 500 tons per month during the period he was restricted by the operation of the Saline Valley Aerial Gunnery Range.
28. Utilizing the average rate of unrestricted production, i. e., 214.129 tons per month, to compute loss of profits in the partially restricted period, the 10 months’ production would be 2,141.29 tons, and utilizing the average profit per ton during unrestricted production, i. e., $4,588 per ton, the 10 months’ profit would be $9,824.24. Plaintiff actually made a profit of $483.63 during said 10-month period, so his loss of profits was $9,340.61.
29. Utilizing the same average rates used in finding 26, but for the 11-month period of full restriction, production might have been 214.129 times 11, or 2,355.419 tons, and the profit might have been 2,355.419 times $4,588, or $10,806.66.
30. The plaintiff’s total loss of profits from the White Eagle Talc Mine operation for the period from June 10, 1944 to February 21, 1946, during which period the operations were restricted by .the Government, was $9,340.61 plus $10,806.66, a total of $20,147.27.