JUST COMPENSATION-Continued
intended such element to be included, the Court of
Claims has equitable jurisdiction to reform the
instrument so as to express the understanding and
intentions of the parties, and for the purpose of
determining whether the claim, if established, is a
valid one against the Uuited States, and having so
determined, to award a money judgment. Id.
XVIII. It is shown by the evidence that by reason of the
construction of the Government dam the raising of
the water level above ordinary high water placed a
servitude on plaintiff's property and created a per-
manent condition that was potentially dangerous in
that prior to its existence plaintiff's bridge facilities
were adequate to withstand the ravages of nature's
yearly floods and ice jams but after its creation and
maintenance plaintiff's wooden bridges across the
sloughs of the river became inadequate to resist
even the normal flood conditions of 1945 super-
imposed upon this condition.
XIX. The bridges had been, before the construction of the
Government dam adequate to withstand the normal
flow of ice every spring prior to 1938, and with the
repairs actually made from time to time would have
continued adequate if the bridges had not been
weakened by the new pool level. Id.
XX. Navigability is a fact which must be proved, and the
proof must consist of evidence that the watercourse
in question is either used or is susceptible of use, in
its ordinary condition, as a highway of commerce
over which trade and travel may be conducted in
the customary modes of trade and travel on water.
Id.
XXI. The burden of proving navigability is on the party
asserting it; and in the instant case it is held that
not only has defendant failed to produce satis-
factory proof that the two sloughs in question are
navigable, but there is sufficient proof in the record
to support the court's conclusion that the two sloughs
are not navigable water courses of the United States.
Id.
XXII. The cost of reproduction or replacement less deprecia-
tion is not the only measure of just compensation
in the case of a taking of private property for public
use. In the instant case, the court concludes that
the fair and reasonable cost of the construction of
the spans in question as of April 18, 1938, for labor
JUST COMPENSATION-Continued
and materials, is a proper measure of just compen-
sation, to which should be added 5%, representing
reasonable value of engineering services for designs,
supervision, necessary surveys, checking of estimates,
and general engineering work connected with the
construction. On this item the court concludes
that $35,000 represents just compensation to plain-
tiff to enable it to meet and overcome the servitude
placed upon its bridges by the operation of the lock
and dam by the Government. Id.
XXIII. As the total amount of just compensation allowed for
the several items $84,375 is fixed, and judgment is
awarded to plaintiff for this amount, and as a part
of just compensation interest thereon at 4 percent
per annum from April 18, 1938, to date of payment.
Id.
See also Statute of Limitations I, II, III, IV.
I. In a suit to recover alleged losses sustained on con-
tracts with the Government entered into on differ-
ent dates in 1940, 1941, and 1944 where it is not
alleged in the petition that the contracts had any
relationship to the prosecution of the war; it is
held that the claims involved cannot be considered
by the Court of Claims under the "Lucas Act"
(60 Stat. 902) as amended (62 Stat. 869). Richard-
son, 695.
II. The Lucas Act is a supplement to Section 201 of the
First War Powers Act (55 Stat. 838) which gave
the President power to "authorize any department
or agency of the Government exercising functions
in connection with the prosecution of the war
effort" to amend or modify a contract "whenever
he deems such action would facilitate the prosecu-
tion of the war." Under the Lucas Act the depart-
ments or agencies concerned with the war effort
were authorized "to consider, adjust, and settle
equitable claims of contractors" for losses incurred,
without fault or negligence on the part of contrac-
tors, between September 16, 1940, and August 14,
1945, but such contracts must have been "in con-
nection with the prosecution of the war effort."
Id.
III. The legislative history of the Lucas Act sustains the
conclusion that Congress, in its enactment, clearly
had in mind losses sustained on contracts entered
into, in the stipulated period, "in connection with
the prosecution of the war effort," and it was not
intended to include Government contracts generally
which were entered into between the dates Septem-
ber 16, 1940, and August 14, 1945. Id.
IV. With reference to the fifth contract included in plain-
tiffs' petition, where there has been no administrative
determination of the claim, the Court of Claims is
without jurisdiction under the Lucas Act, since Sec-
tion 6 of the Act, as amended, permits a contractor
to bring suit only after an administrative decision
has been rendered. Id.
V. Following the decision in David A. Richardson et al.
v. United States, No. 49144, ante p. 695, the defend-
ant's demurrer is sustained and plaintiff's petition
is dismissed, since relief under the Lucas Act is
available only to contractors who entered into con-
tracts with the Government within the dates speci-
fied in the act for work in connection with the prose-
cution of the war effort. Ralph G. Barnes, 715.
MAILS, TRANSPORTATION OF.
See Transportation of Mails.
MARKET VALUE.
During the war emergency, when practically all prod-
ucts were subject to allocation, as rubber was,
there was no free market and hence no "market
value" by which to determine just compensation
under the Fifth Amendment. See United States v.
Cors, 337 U. S. 325. Lord, 199.
MERCHANT MARINE ACT.
See Statute of Limitations I, II, III, IV.
MISREPRESENTATION.
See Contracts XI, XII, XIII, XIV, XV, XVI, XVII, L.
MUTUAL MISTAKE.
See Just Compensation XVI.
NAVIGABILITY.
See Just Compensation XI, XII, XIII, XIV, XV, XVI, XVII,
XVIII, XIX, XX, XXI, XXII, XXIII.
See Agricultural Adjustment Act I, VIII.
OVERTIME PAY.
I. Plaintiff, an Immigration Inspector at the port of New
York, is entitled to recover extra compensation for
overtime and holiday work, between July 1, 1947,
and December 31, 1947, computed on the basis of
the rates established by the Act of March 2, 1931.
See O'Rourke v. United States, 109 C. Cls. 33. Gib-
ney, 38.
OVERTIME PAY-Continued
II. Where the "Ball Amendment" to the Commerce De-
partment Appropriation Act for the fiscal year 1948
forbade the use of the funds appropriated for the
Immigration and Naturalization Service to pay
"overtime services other than as provided in the
Federal Employees Pay Act of 1945"; and where
Section 601 of the 1945 Act provided that "the pro-
visions of this Act shall not operate to prevent pay-
ment for overtime services or extra pay for Sunday
or holiday work in accordance with any of the follow-
ing statutes", including the Act of March 2, 1931,
it is held that the "Ball Amendment", as worded,
did not prevent the premium payment to immigra-
tion inspectors under the terms of the Act of March
2, 1931, which is the Act under which the instant
suit is brought. Id.
III. A simple limitation in an appropriation bill on the use
of funds appropriated therein does not suspend a
statutory obligation. Id.
IV. Under the decision in United States v. Myers, 320 U. S.
561, plaintiff, an immigration inspector at a port of
entry located on a free public highway which crosses
the boundary of the United States and Mexico, is
entitled to recover extra compensation provided in
the Act of March 2, 1931, as amended, for work
performed on Sunday in connection with the in-
spection of foot traffic. See Renner v. United States
and Krupp v. United States, 106 C. Cls. 676, and
O'Rourke v. United States, 109 C. Cls. 33. Taylor, 59.
V. The court sees no distinction in principle, under the
statute, between the various ways in which immi-
grants cross the border, whether on foot or in private
automobiles or in buses. The fact that the immi-
grants at his station crossed the border on foot did
not make plaintiff's Sunday duty other than Sunday
duty. Id.
VI. Following the decision in Thomas C. Gibney v. United
States, ante p. 38, it is held that plaintiff, an immigra-
tion inspector at the port of Cleveland, is entitled
to recover extra compensation for overtime and
holiday work between July 1, 1947, and December
31, 1947, computed on the basis of the rates estab-
lished by the Act of March 2, 1931. Ahearn, 65.
VII. It is held that the fact that the plaintiff in the instant
case performed some extra services of the exempt
or reimbursable class while in the Gibney case
plaintiff's services were of the nonexempt class is
not material and does not affect plaintiff's right to
recover extra compensation for such services.
O'Rourke v. United States, 109 C. Cls. 33. Id.
I. Where plaintiff sues for infringement by the United
States of a design patent, No. 76,783, issued Novem-
ber 6, 1928, for a "Combination Bookcase and
Desk Cabinet or Similar Article"; under the statutes
and the pertinent rules, it is held that, on the facts
disclosed by the record, there are no sufficient
grounds for recovery by the plaintiff and the petition
is dismissed. Dickey, 439.
II. Where the numerous items comprising desk cabinet
covered by design patent, such as bookcase doors,
drawers, cabinet doors, and tapered legs, had all
been used in furniture long before filing of applica-
tion for patent, claim to novelty was required to rest
on the arrangement of such items as a whole. Id.
III. The articles, including a secretary-bureau used by the
Navy Department, a safe locker used on certain
battleships, and a dental cabinet, claimed to infringe
plaintiff's patent, either do not meet the test of
infringement or were anticipated by the prior art.
IV. The Government, being sovereign, can be sued only
in respect to matters and subjects in connection
with which it has given consent to be sued, and in
giving that consent the Government may lay down
the limitations and restrict in any way the scope of
that consent. In case of patent infringement by
the Government the scope of recovery is clearly
defined by the statutes and by the decisions of the
Supreme Court. Id.
V. Where plaintiff sues to recover compensation for the
alleged unauthorized use by defendant of two un-
patented inventions or devices, it is held that under
the statutes plaintiff's petition does not set forth a
cause of action of which the Court of Claims has
jurisdiction; and defendant's motion to dismiss is
sustained and the petition dismissed. Horner, 612.
VI. The first claim asserted in plaintiff's petition relates to
the alleged use by defendant of plaintiff's unpatented
inventions or devices for "illusionary or dummy
weapons of warfare." The second claim asserted
is for the alleged use by defendant without payment
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