The balance of Mr. Warren's claim is predicated upon the theory that the act of the United States in taking possession of his property through condemnation proceedings, necessitating the removal of his business to another location, caused him moving expenses and a loss of business revenue, for all of which he desires to be reimbursed. The well-established rule of law is that where title to property is taken by the exercise of the power of eminent domain the occupant is not entitled to recover expenses incurred in the removal of his business or for the loss of income. Thus, in the case of Emory v. Boston Terminal Co. (178 Mass. 172, 59 N. E. 763), the Supreme Judicial Court of Massachusetts, speaking through its then Chief Justice Holmes, said:

"It appears from what we have said that the petitioners had no rights in the land as against the respondent after May 1. At that date they would have had to leave the premises and could have recovered nothing for being forced to do so. Emerson v. City of Somerville (166 Mass. 115, 118, 44 N. E. 110). For this, if for no other reason, they were entitled to recover nothing for interruption of their business by reason of having to move. The same principle applies to a claim for the expenses of removing the petitioners' property to their new place of business."

In Futrovsky v. United States (66 F. (2d) 215, 217), the Court of Appeals of the District of Columbia, in passing on an appeal by owners of a parcel of real estate in the city of Washington taken by the United States in condemnation proceedings, said:

"Here all that can be taken is the real estate, and all that can be recovered is the reasonable value thereof. The inconvenience and exense of removing a going business and its equipment from property so taken cannot be paid for directly, and cannot operate indirectly to change a chattel into real estate." To the same effect see Gershon Bros. Co. v. United States (284 Fed. 849 (C. C. A. 5th Cir.)). In view of all of the foregoing the Department of the Army would have no objection to the enactment of this bill if it should be so amended as to provide for an award to Mr. Warren in the amount of $576.

The claimant has no remedy under the Federal Tort Claims Act (60 Stat. 843; 28 U. S. C. 921), as revised and codified by the act of June 25, 1948 (62 Stat. 983; 28 U. S. C. 2672), for the reason that the incidents out of which the claim arises occurred prior to January 1, 1945, the retroactive date of the original Federal Tort Claims Act.

Inasmuch as the committee has requested that this report be expedited, it is submitted without a determination by the Bureau of the Budget as to whether it conforms to the program of the President.

Sincerely yours,

Hon. HARRY R. SHEPPARD,

Twenty-first District, California,

GORDON GRAY, Acting Secretary of the Army.

LOS ANGELES 13, CALIF., December 9, 1947.

House Office Building, Washington, D. C.

DEAR MR. SHEPPARD: Mr. Warren, one of your present constituents, living at 9959 Sepulveda Boulevard, San Fernando, Calif., has asked me to write you requesting that you introduce a special act in Congress to compensate him for losses due to Government operations sustained by him, as is more fully set out below, for the reason that there is no present law under which he may be compensated.

Mr. Warren originally lived in Van Nuys, Calif., at 7412 Havenhurst Avenue. His business was raising domesticated game birds, pigeons, and domesticated wild ducks, etc. During the war the Government condemned his property in Van Nuys and it is now a part of the Van Nuys Airfield. We settled with the Government satisfactorily on the value of the real estate and the improvements thereon. This only leaves then the question of damages to his flock of squabbing pigeons and loss of game birds which was caused by the Government operations on the adjoining property just prior to the time that Mr. Warren moved out.

The facts are that Mr. Warren sustained a loss on his squabbing piegeons because due to the Government's order for immediate possession of his property Mr. Warren had to sell the whole lot at a low figure, thereby losing all of the squabs, because it is impossible to move pigeons and squabs to a new location. The pigeons will always desert the squabs when any such move is made.

As regards the loss of the wild ducks and game birds, this was caused by the fact that the contractors on the adjoining property working at night used large searchlights and when the beams would move across Mr. Warren's property, the moving shadows caused by these beams flushed the game birds and they would hit the top of the coops in an attempt to fly away and break their necks, and Mr. Warren would find them dead in the pens the next morning.

We did everything humanly possible to get Mr. Warren out of there and set up at his present location in San Fernando. New pens, of course, to hold his large flock of pheasants and wild ducks had to be constructed on the new premises and then the birds removed in crates to their new quarters. All this took time and money, and the scarcity of labor, of course, resulted in delay and the continued work on the adjoining property caused the damage.

In order to have the records straight, we filed a claim for damages here in Los Angeles and this was submitted to the United States Engineering Department, Los Angeles, and the claim was refused after a couple of years. Thereafter, I took an appeal to the Office of the Division Engineer. War Department, which was denied on November 26, 1947.

I received a letter from Samuel C. Borzilleri, major, Air Corps Assistant, Office of the Assistant Secretary of the Army, who explained the reason for the denial of the appeal, which I enclose

It appears that the Department of the Army contends that the damages suffered by Mr. Warren were not caused by any negligence or wrongful act on the part of the United States since the use of lights at night during construction work was legal and did not constitute and unlawful nuisance. Major Borzilleri also states:

* *

"It is regretted that your client lost valuable property through the use of necessary night lights but under the statutory authority for the consideration of claims of this nature, there was no alternative but to deny your client's claim."

The major is undoubtedly correct as a matter of law, and in view of the fact that he must decide in accordance with the law, it leaves my client without any further remedy except by direct appeal to the Congress of the United States for relief.

The amounts which were originally claimed were very carefully checked. They are not exorbitant, and they do not amount to a great deal of money except that a loss of this kind will be quite injurious to Mr. Warren. The amount that he asks for loss on the pigeons is $636; and for loss of his game birds, $576, making a total of $1,212, and the detail loss is as follows:

Anything you can do for Mr. Warren will be greatly appreciated by both Mr.

103

636

Warren and

Yours very truly,

H. Repts., 81-1, vol. 3—114

Description: 7412 Havenhurst Avenue, Van Nuys, Calif. The south 330 feet of the west 635 feet of lot 611, tract 1000, in the city of and county of Los Angeles, State of California, as per map recorded in book 19, pages 1 to 34, inclusive, of maps, in the office of the county recorder of said county.

Name of owner or owners: Harry Warren.

Occurrence of damage

Branch of service occupying the property: War Department taking over for airport.

Period of occupancy: Permanent on condemnation.

Nature and extent of damage: Damage to personal property consisting of pheasants and pigeons, as explained below.

How damages occurred: Damage occurred to pheasants and other wild game birds on the property by reason of engineering operations on adjacent property during the night, flashing of lights over claimant's property causing the game birds to "flush" and break their necks on wire tops of pens. The number of such birds lost at their market value made a total damage of $576. Further loss due to order for immediate possession required forced sale of a large flock of squabbing pigeon breeders. Only the older birds could be sold at reduced price. All squabs and eggs destroyed in view of the fact that claimant was given insufficient time to prepare a place to accommodate this flock of peigons. Loss, $636. Truck hire in moving equipment and other personal property to a new location, $254.60. Cost of repair of damages equipment and loss through replacement, $850. Interest paid to finance procurement and removal to new location, loss of advertising, circulars, letterheads, $300. The above, of course, was all due to required speed and lack of time required under notice to vacate and order for immediate possession.

When and where may damaged property be inspected: Statement of costs and loss of property may be obtained from claimant.

Amount of claim

Cost of repair, all replacements, and other damage, $2,616.60.

How damage is established (receipted bills or signed estimates to be attached): See attached.

If the damage is covered in whole or in part by insurance state name of insurance company, amount of coverage and dates of any payments made: No

insurance.

Do the attached bills cover any repairs except those made necessary by the damage? No.

Amount claimed: $2,616.60.

HARRY WARREN.

Subscribed and sworn to before me this

day of

1944.

APPEAL FROM THE DECISION OF THE DIVISION ENGINEER DISALLOWING THE CLAIM OF HARRY WARREN, 9959 SEPULVEDA BOULEVARD, SAN FERNANDO, CALIF., BEING FILE No. PSDVL 537.8 (GENERAL), AMOUNT INVOLVED $576 This is a claim for damages-the value of certain game birds destroyed, caused by flashing lights used on adjoining property which frightened the birds, causing them to "flush" violently against wire pen roofs, thus breaking their necks.

Claimant had for many years prior used his property exclusively for and his business was the domestic propagation of game birds.

Facts show that the real property of claimant was condemned by the United States for airfield purposes, as was also adjacent property. Claimant was ordered

to vacate by a certain time, but before that time arrived agents of the Government moved onto the adjoining land and during night work used large searchlights, throwing the beams over claimant's land and holding pens. Claimant protested that the use of these lights in the manner used was causing his birds to "flush" and kill themselves on the ceiling wires, but his protests were not heeded. The market value of the birds destroyed constitutes the basis of the claim.

The division engineer disapproved the claim on the ground that the loss alleged was not caused by any negligence or wrongful act on the part of the Government, or its agent; that there is, therefore, no authority to approve such claim.

It is claimant's contention that where the use of lights on adjoining property may not be negligence per se or constitute per se a wrongful act, yet at the same time it did constitute a private nuisance, and subjects the owner of the property from which it emanated to liability for any actual damage inflicted upon third parties by reason of the maintenance of the objectionable activity.

According to the earliest definition of nuisance as contained in Blackstone's Commentaries, it is said that a nuisance is anything done to the hurt or annoyance of the lands, tenements, or hereditaments of another. A more comprehensive definition, however, must be adopted in order to include everything that is recognized by the law as a nuisance at the present day. The decisions establish that the term "nuisance," in legal parlance, extends to everything that endangers life or health, gives offense to the senses, violates the laws of decency, or obstructs the reasonable and comfortable use of property.

It has often been stated that in an action for creating or maintaining a nuisance, the existence of the nuisance fixes the liability without proof of negligence on the part of the defendants (Whaley v. Sloss-Sheffield Steel, etc., Co., 51 So. 419; 20 Ann. Cas. 822 and note: Notes 118 A. S. R. 870: 10 Ann. Cas. 456: 20 R. C. L. 380 et seq.).

A nuisance does not rest on the degree of care used, for that presents a question of negligence, but on the degree of danger existing even with the best of care. Degree implies gradation, and gradation depends on circumstances. When the degree of danger is obvious and so extreme as to invite calamity, a nuisance per se exists.

Where a single act produces a continuing result, the offense may be complete without a recurrence of the act.

It is well recognized as a matter of law that persons liable for nuisances are always the owners or occupants of the land on which is carried forward the objectionable activity (21 Ruling Cas. 391)

In this particular case the Government cannot in the opinion of the claimant absolve itself from liability because the damage was not a direct and proximate result of the negligence or wrongful act of the Government, because negligence is not an issue in this matter.

It is, therefore, respectfully submitted that in view of the fact that the operation constituted a private nuisance the existence of which had been communicated to the Government's agent by the claimant, and that the continuation of the objectionable activity had resulted in damage to the claimant, the Government should as a matter of law as well as in fairness to the claimant reimburse him for the loss sustained thereby.

Respectfully submitted.