The opinion
Davis, Jvdge,
dissenting in part:
I join the majority of the panel in adopting most of the Trial Judge’s opinion and findings hut I dissent with respect to the so-called “pilferage taking claim.” As to that demand I think that claimant has shown enough to warrant a judgment in his favor on liability, as well as a remand to the Trial Division to determine the 'amount of that taking and the quantum of recovery.
The main facts and factors leading me to the other position on this claim are these: (a) it is undisputed that :by 1973 almost all of the lumber and material had disappeared, and it seems to me clear that by 1967 very serious losses had occurred ; (b) the record makes it very unlikely, in my view, that the bulk of these losses was due to climatic conditions or to sales by the plaintiff; (c) on the contrary, the record persuades me that the great bulk of the materials were taken by personnel living or stationed on the base for use in connection with buildings or structures (on the base) owned by the United States and affixed to real property leased for a very long period to the United States (there were no private buildings and no private lands on the base); (d) there was sufficient, uncontradicted testimony that many of the materials removed from plaintiff’s lots were taken by United States personnel in uniform and in government vehicles; (e) the Government necessarily received and retained the benefit of the removed materials because they were incorporated and used in government-owned buildings and structures; (f) whether or not the takings of this property were initially authorized, the Government obtained and retained the benefit of the removals and should therefore be required to pay just compensation (see Oro Fino Consolidated Mines, Inc. v. United States, 118 Ct. Cl. 18 , 23, 92 F. Supp. 1016, 1019 (1950), cert. denied, 341 U.S. 948 (1951); Forest of Dean *486 Iron Ore Co. v. United States, 106 Ct. Cl. 250 , 65 F. Supp. 585 (1946); Silberman v. United States, 71 F. Supp. 895, 896 (D. Mass. 1947); Ivey v. United States, 88 F. Supp. 6, 8-9 (E.D. Tenn. 1950)); and (g) in any event, the defendant’s inadequate efforts to prevent pilferage by personnel over whom it had the widest control (i.e. all personnel on the base), especially since that pilferage redounded to the defendant’s own ultimate benefit, lead me to conclude that the “takers” had sufficient implied authority (cf. Eyherabide v. United States, 170 Ct. Cl. 598, 606-607 , 345 F. 2d 565, 570 (1965)).
This taking claim is not barred by limitations since, in my view, it did not mature until after June-July 1963 (see finding 79 and United States v. Dickinson, 331 U.S. 745 (1947)). The petition here was filed less than six years later in February 1969. As for the defense under 28 U.S.C. § 2502 (reciprocity), I would hold that provision inapplicable to suits by alien friends for just compensation for property taken by the United States within an area over which the United States has as much control as over Guantanamo Naval Base. See Russian Volunteer Fleet v. United States, 282 U.S. 481, 491-92 (1931).
CONCLUSION OP LAW
Upon the findings of fact and the foregoing opinion, which are adopted by the court and made a part of the judgment herein, the court concludes 'as a matter of law that plaintiff is not entitled to recover and the petition is dismissed.