in one of the wall stones in a conspicuous part of this house was carved the words, "U. S. property. Do not injure." This property stands within a few miles of this company's establishment and its existence was known to the company at the time it located its establishment upon that island. Sixty feet from the building was a 60-foot flagstaff, 18 inches in diameter, on which was carved: "U. S., September 12, 1896."

February 28, 1902, Secretary of State Hay informed the British minister that the United States had been in possession of Wales. Island ever since its acquisition from Russia.

This company relied upon the assurance thus given by the Government that its sovereignty extended over Wales Island in acquiring all its vested interests.

The effect of the decision of the Alaskan Boundary Tribunal upon the plaintiff company, under the then existing United States and Canadian tariff, customs, and fishing laws, and conditions as to location of cannery in Canada with the fishing grounds in the United States, was to render its canning factory practically valueless for the purposes for which it was built. Its former fishing grounds, with respect to which this site was selected, are all left on the United States side of the boundary, as laid down by this decision, and were no longer available to this company. On the Canadian side of the line there were no fishing grounds in the immediate neighborhood of the establishment of this company excepting for pink fish. Such fishing grounds as are to be found on the Canadian coast are so inconveniently placed that it is practically out of the question for this company to attempt to do its fishing there. Furthermore, such Canadian fishing grounds as there are have all been appropriated by Canadian companies located within convenient reach, and the fishing on the Canadian side in this neighborhood is overcrowded.

It would not have been possible for the company to reestablish itself on a new site and continue its business on the United States side of the line, because there was no available site within reach of the fisheries in that neighborhood upon which an establishment could be constructed. A location for a packing factory requires certain peculiar conditions, which are not readily found on that coast. A stream furnishing a plentiful supply of fresh water is one of the essential features; another is that there must be a good harbor for large boats, and there must also be an anchorage for small boats; and the shore must be sufficiently level to permit the erection of the necessary buildings and plant, each of which requirements is extremely difficult to find on this portion of the Alaskan coast, and it is a most unusual thing to find them all in conjunction. Throughout this entire region the shores are generally formed by precipitous cliffs or mountain slopes rising abruptly from the water's edge, leaving no space available for the location of a factory plant.

The character of this packing factory and plant is such that it would be impossible to move it to advantage. One of its chief features is a pier of heavy timbers resting on piles, upon which is constructed the factory building. The cost of moving work of such a character would be more than the cost of replacing it by an entirely new structure. A large item in the expense of establishing this plant has been the improvements and alterations in the natural surroundings, such as clearing the woods, grading, etc., and constructing

a flume for the fresh-water supply upward of a mile and a quarter into the island. Such improvements as these pertain to the soil and on any new site similar work would have to be done anew, so that they represent no value which could be transferred to a new location.

The site of the cannery was procured by the purchase of the rights of a settler, J. W. Turk, and of the location rights of John W. Stedman. The proceedings to acquire title were in accordance with the laws of the United States, and the title papers were duly recorded with the ex officio recorder and custodian of the records for the District of Alaska at Ketchikan before the 19th of February, 1902.

In May, 1902, and in May, 1903, the clerk of the U. S. court at Juneau issued to plaintiff a license to conduct the business of general merchandise at Wales Island. It also received a license to conduct the business of catching and canning salmon.

A treaty between the United States and Great Britain of January 24, 1903 (32 Stat. 1961), provided for a tribunal to settle the boundary between Alaska and the British possessions, and it expressly stipulated that the tribunal should consider particularly Articles III, IV, and V of the treaty of 1825 between his Britannic Majesty and the Emperor of Russia. The tribunal met in London and, without giving any notice to plaintiff that Great Britain claimed Wales Island, decided October 20, 1903, that it belonged to the British possessions in North America. (S. Doc. No. 162, 58th Cong., 2d sess., and S. Doc. No. 47, 61st Cong., 2d sess.) Thereafter the plaintiff could not transact any business at its cannery and was compelled in the year 1912 to sell its plant to a citizen of British Columbia. The sale netted to plaintiff the sum of $3,537.17. The said treaties and said decision of the Alaskan Boundary Tribunal made no reference to the title of individuals to any part of Wales Island or other privately owned property, and such questions were not before or considered by said Alaskan Boundary Tribunal.

There has been no delay or laches in presenting said claim inasmuch as plaintiff presented its memorial to the Secretary of State on the 27th of January, 1904, and has been diligent in asking relief from Congress ever since.

OPINION

GREEN, Judge, delivered the opinion of the court:

The Senate of the United States having before it a bill for the relief of the Wales Island Packing Co., claimant in this case, on March 2, 1923, adopted a resolution (S. Res. 447) referring the bill to this court for findings of fact in accordance with the statute made and provided. (Sec. 151, Judicial Code.) Pursuant thereto we present herewith a finding of facts which may be properly considered in determining the amount of relief, if any, to be awarded the claimant, together with our conclusions upon the ultimate facts as to the amount of damages which the claimant has sustained by reason of the matters upon which its claim is based. In this connection, we think it proper to state briefly our reasons for these findings. While the claimant does not stand in the position of a party that brings a suit in this court, for convenience in the findings of fact and the opinion it is styled the plaintiff and the United States the defendant.

The salient facts in the case are as follows:

記

1

In the years 1902 and 1903 the plaintiff was in the business of catching, curing, and canning salmon and other fish, and for that purpose had a factory and plant established on Wales Island, in Portland Canal, on the southeastern coast of Alaska. The establishment of the company was complete for the prosecution of a successful business. The machinery was all of the latest patterns, and the factory was equipped for a large pack. The site was the only site suitable for such purposes in the entire neighborhood on the American side of the boundary then established, and was also most conveniently located with reference to the best fishing grounds, and peculiarly well fitted by its natural advantages for the purpose of a cannery. The fishing grounds were practically inexhaustible, and a number of circumstances, set out more particularly in the findings of fact, added to make the site especially well adapted for the location of such a canning factory. The title of the plaintiff to the site and its property located thereon is not disputed so far as its relations with the United States are concerned, which Government had asserted title and sovereignty over the island upon which the factory was located and held possession thereof from the time of the purchase of Alaska from Russia down to the date of the decision of the Alaskan Boundary Tribunal, to which reference is hereinafter made.

The treaty between the United States and Great Britain of January 24, 1903, provided for a tribunal to settle the boundary between Alaska and the British possessions. This tribunal met in London, and without any notice to the plaintiff decided October 20, 1903, that Wales Island belonged to the British possessions in North America. Thereafter the plaintiff could no longer carry on any business at its cannery and was compelled in the year 1912 to sell its plant to a citizen of British Columbia for $3,537.17. The findings of fact show more particularly the reasons why the plaintiff was compelled by the action of the boundary commission to give up its business and sell its plant. We do not repeat these facts because there is practically no dispute on this question.

The plaintiff alleges that it has sustained a loss of $176,039.19 by reason of the action of the commission. Two objections are set up by counsel for the Government to the claim thus made:

First, that the claim of the plaintiff is barred by the statute of limitations.

Second, that the amount claimed is far greater than the loss actually sustained.

The defense made that plaintiff's case is barred by the statute of limitations and the court therefore has no jurisdiction thereof can not be sustained. Whatever claim plaintiff may have is not legal in its nature and is not one as to which the general statute of limitations applies, or the special statute commonly known as the Crawford amendment. The findings of fact show that there has been no delay or laches in presenting the claim to Congress, which in the first instance was the only body that could properly consider it, and when action was taken by the Senate the plaintiff, within reasonable time, presented its case to this court.

We therefore proceed to a consideration of the amount of plaintiff's damages.

Obviously plaintiff's damages include the cost of its plant less a reasonable depreciation. As to this cost there is an agreement

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between the accounts of plaintiff and the Government, but the parties dispute as to the amount of depreciation on the plant, the value of the site, and other matters, particularly the claim that plaintiff makes as to the value of the plant and location, which the plaintiff computes on the basis of the profit made in 1903. A difference between the parties of $49,623.17 is due to the valuation by the plaintiff of its tangible assets upon a basis of capitalization at 8 per cent of the net return of one and a half years of the factory's operations. The defendant allows nothing on this item and also computes a large depreciation on the property of plaintiff, while the plaintiff insists that no depreciation at all should be allowed in determining its loss. We do not think that either party has correctly estimated the amount of the plaintiff's loss or taken the correct basis for determining it. What the plaintiff lost, as we view it, was the fair value of its plant site and everything connected therewith at the time it was put out of business by the decision of the boundary commission, less the $3,537.17 realized from the sale of the property. This fair value was such a sum as a person desirous of and willing to purchase such a property would at that time have paid therefor to a party owning the same who was willing to sell. This amount can not be calculated mathematically in its entirety but must be determined from all of the circumstances of the case, including the matters we have before mentioned.

We have given these items due consideration, and in this connection we may say that we think the plaintiff overvalues and the defendant very much undervalues the site, which the facts stated in the findings show was the only suitable site in the entire neighborhood on the American side of the boundary as then established. With reference to the capitalization of value based on the profits made in 1903, our opinion is that it is not proper to measure plaintiff's loss thereby. Undoubtedly a prospective purchaser would give more for a plant which was a going concern and which had already shown that it was capable of making a profit than one as to which these facts did not appear, and we have taken this into consideration in determining the amount of plaintiff's loss. Upon a careful consideration of all of the matters bearing thereon we conclude, as an ultimate fact in the case, that after deducting the amount realized from the property plaintiff's loss by reason of the action of the boundary commission was $100,000. We have expressed this amount in round figures because there is no way of determining the exact amount, but under the general rules of law we are not by this reason precluded from fixing the sum as accurately as the circumstances will permit.

The plaintiff's claim is an equitable one, but whether the equity shown by the findings of fact and this opinion is of such a nature as to justify Congress in granting it relief is, of course, a question wholly to be determined by that body.

Whaley, Judge; Williams, Judge; Littleton, Judge; and Booth, Chief Justice, concur.

Filed February 9, 1931.

A true copy.

Test this February 11, 1932.

F. C. KLEINSCHMIDT,

Assistant Clerk.

Court of Claims of the United States. The Wales Island Packing Co. v. The United States. Congressional, No. 17340.

(Decided

January 18, 1932.)

SUPPLEMENTAL OPINION ON MOTION FOR NEW TRIAL

GREEN, Judge, delivered the opinion of the court:

The motion for new trial is based upon two propositions which are argued together in the brief which is presented on the motion, first proposition is that the jurisdiction of this court does not extend to claims growing out of or dependent upon any treaty stipulation. The second is that by section 5 of the act of March 4, 1915, known as the Crawford amendment, the court was prevented from considering the case, notwithstanding the claim had been referred to it by a Senate resolution for the purpose of making a finding of facts in accordance with section 151, Judicial Code.

It must be admitted that if the Senate resolution undertook to give the court jurisdiction to hear and determine a claim against the Government growing out of or dependent upon a treaty stipulation, the court could not take jurisdiction thereof for many reasons. It is not necessary to consider these reasons as the premise upon which they are based does not exist in the case. The claim is not founded on the treaty stipulation. It is true that the petition referred to a treaty and that the findings of fact and opinion of the court, in setting forth the history of the case, also refer to the treaty between the United States and Great Britain for the purpose of establishing the boundary line between this country and Canada, but it was entirely unnecessary that this matter should have been mentioned either in the petition, the findings of fact, or the opinion. The foundation of the case was not upon the treaty or any stipulation contained therein. If the treaty had not been entered into it is quite likely the case never would have arisen, but the basis of the case was a matter not mentioned or even referred to indirectly in the treaty.

Counsel for defendant, as we think, misconstrue the Crawford amendment and do not correctly apply the decision of this court. in the case of Chase v. United States (50 C. Cls. 293). The Crawford amendment, among other things, provided in substance that the Court of Claims should not have jurisdiction of any claim which is now barred by the provisions of any law of the United States. It is contended on behalf of the defendant that the Crawford amendment thereby excluded any claim which was in any way barred, and that this claim is barred both by reason of the court being prevented from taking jurisdiction by the statute of limitations and by the fact that the case rests upon a treaty stipulation. We have already shown that the statement with reference to the treaty stipulation has no foundation in fact, and we think it quite clear that the statutes of limitation have no application to the case.

The fundamental error in the argument of defendant, as we view it, arises from a mistake as to the effect of the statute of limitations. The statute of limitations has no effect upon any contractual relation or in general upon the existence of a liability or a moral obligation. It pertains merely to the remedy and prevents the court from rendering any judgment upon a cause of action which is barred thereby. While it also affects the jurisdiction of this court to consider the case,