during the summer of 1942, in which it was so disagreeable to the occupants of the houses that it was [they were] completely evacuated.

66* * * At the present time the stream which leaves the disposal plant has a width of about 2 feet and a depth of about 5 inches or is nearly 1 foot square. Approximately, this volume is constantly flowing through the subject tract and although it is supposed to have a large percent purity and to even be potable, its presence is considered to be obnoxious to a prospective buyer of property. * * * The earthen tank [lake] which was filled with sewage is now completely filled and the loss of this tank, together with the stock of fish therein is considered to be a total loss. Its value to the property was threefold, (a) scenic attractiveness, (b) domestic usefulness, and (c) value in supplementing by seepage, the water supply of the well located 30 feet therefrom. There is further the loss of good water in the well [adjacent to the lake] which supplied the entire tract with water. 66* * * Due to the offensiveness of the odor emanating from the nuisance rendering living and working conditions unbearable to personnel of the homes and shops, it is thought reasonable to allow damage for the period of time in which this condition prevailed. * * *

*

"In estimating the temporary damage it is thought that the owner is entitled to a fair rental on his property * *. It is thought that 10 percent revenue from the investment is fair and this amounts to $100 per month."

On November 7, 1944, Nat Williams, of Wichita Falls, made the following state

ment:

"I have worked for the Wichita Gas Engine Works since about 1927. I was working for the company in 1941, 1942, and 1943, and am working for the company at the present time.

"In the winter of 1941 sewage waste began to be noticeable in the tank or pond which runs through the property. In the winter of 1942 odors from this sewage were quite noticeable. The summer of 1942 was the worst. The smell was sickening. The stuff in the tank would act like it was kind of boiling. One of the colored boys who worked with us, John Rogers, vomited. He left the plant for a while, but did come back to work later. Other workers were all complaining about the smells. When hot weather came in the summer of 1943 the smells were almost as bad as they were in the summer of 1942. I have seen customers come to the plant and stick up their noses and leave. This I have seen on many occasions.

"It was so bad in the summer of 1942 that Mr. Fred Lower and his family had to leave their home and go take a house in town. I could not swear that the stench drove Mr. Lower's employees away, except for John Rogers, who got sick, but it is my best judgment that the sickening odors did so because many of them had worked for him for a long time before this. He was a good employer.

"Business was good before this stuff began to come down the creek. It seems to me like it had fallen off right much since."

In a statement dated November 6, 1944, Col. E. H. Barr, post quartermaster, at Sheppard Field, said:

"It is my opinion that during the months of June, July and August 1942 that it would not have been reasonable to ask Mr. Lower to live in his house due to the intensity and offensiveness of the odor from the tank and that it would have been very difficult for Mr. Lower to have hired mechanical tradesmen to work in his shop due to the offensiveness of the odor during those months. If I were the person responsible for the damage in a business way, I would consider myself very fortunate to be out of it for $25,000. I base this opinion on deprivation, personal inconvenience, discomforture, loss of business, loss of use of the property, permanent damage to real estate from scenic and natural advantages.'

On November 6, 1944, H. F. Quinlan, of Wichita Falls, submitted the following statement:

"I was formerly employed by F. A. Lower at the Wichita Gas Engine Works in Wichita Falls, Tex. I quit this company in May 1942. I had formerly worked for this company, and know the kind and character of work that this plant was equipped to do. The reason I quit in May 1942 was because of the terrible and nauseating odors coming from a sewage ditch from Sheppard Field, Tex. I also know that Bill Dowd, a mechanic and machinist, who was then employed by this company quit for the same reason, and also George Daugherty, a mechanic and machinist quit for the same reasons. There were several common laborers who were working there that quit for the same reason. In fact the odor coming from this sewer ditch was so obnoxious and nauseating that I do not believe anyone could have worked under such conditions, and all of us boys quit working for this plant for that reason."

On November 6, 1944, Jack Neer, of Wichita Falls, submitted the following statement:

"I operate what is known as the Neer Machine Co. at 2700 Grant Street, Wichita Falls, Tex. I do all kinds of machine work in my plant and have a plant similarly equipped to the Wichita Gas Engine Works owned by F. A. Lower. For the past 2 years I have been running at full capacity and have had all the work that I could possibly do. I know the kind and character of equipment that is located at the Wichita Gas Engine Works plant. I know this equipment is capable of making practically any kind of machine tools. The demand for this character of work has increased very materially since war was declared, and anyone in this vicinity who had a machine shop equipped as the Wichita Gas Engine Works could have done all the work that said plant had the capacity to do. In my opinion the demand for this kind and character of work has increased approximately 100 percent during the past 2 years, and a plant equipped as the Wichita Gas Engine Works was equipped in the years 1942 and 1943 could have produced running full capacity $40,000 net worth of business."

It is the view of the War Department that the evidence fairly establishes that Fred A. Lower has been damaged by reason of the pollution of the creek running through his land and the contamination of the atmosphere surrounding his home and place of business by obnoxious and offensive odors and stenches; that he has suffered a loss of profits from his business, the Wichita Gas Engine Works, because of the refusal of his employees to work there, and his inability to persuade others to accept employment, as a direct result of the obnoxious odors which rendered his plant an unfit place to work; that such damage was occasioned by the construction and operation of the sewage-disposal plant at Sheppard Field; that, but for its immunity as a sovereign, the United States would be legally liable for this damage; and that under the circumstances the Government should compensate him in a reasonable amount for such damage.

As a general rule, where the damage to real property caused by a nuisance is of a permanent character, the damages are measured by the decrease in the market value of the property injured. But where the nuisance is temporary or abatable, as in this case, through either the discontinuance of Sheppard Field or the improvement in operation of its sewage-disposal plant, the rule is that the measure of damages is the decrease in the rental value of the property. Furthermore, recovery is not limited to the damage to the property and its rental value, but the owner of the property occupied by him is entitled to just compensation for annoyance, discomfort, and inconvenience caused by the nuisance on adjoining property (39 Am. Jur., Nuisances, sec. 136).

It may be stated as a general rule that in tort actions a recovery may be had for loss of profits, provided such loss is the proximate result of the defendant's wrong and that the amount thereof can be shown with reasonable certainty. The profits recoverable in such cases are limited to probable, as distinguished from possible, profits. They must be such as would be expected to follow naturally the wrongful act and they must be certain both in their nature and in the cause from which they proceed. Profits which are remote, or speculative, contingent or uncertain, are not recoverable (15 Am. Jur., Damages, sec. 155). Accordingly, it would seem that the measure of Mr. Lower's damages as to his loss of profits from the operation of the Wichita Gas Engine Works would be the loss of anticipated profits which would have been realized from that business had not the nuisance been present, and those only in the event they are not too speculative or uncertain as to be reasonably established by proper proof.

Mr. Lower has submitted affidavits from operators engaged in the vicinity of Wichita Falls in types of business similar to that in which he was engaged. Those affidavits are to the effect that during the years 1942, 1943, and 1944 all machine shops in the area were operating to full capacity and that, had Mr. Lower been permitted to operate the Wichita Gas Engine Works with complete regularity and with a full complement of employees, he could have obtained all the work which was available and that it would be reasonable to expect that a plant equipped such as his would have produced a net profit of $40,000 to $60,000 for each of those years. Those figures, coupled with the known profits of the Wichita Gas Engine Works previously realized over a period of years, the sharp reduction in the number of employees during the period of the nuisance, and the fact that some customers avoided the plant because of the offensive odors, lead to the conclusion that Mr. Lower sustained a very substantial loss in profits by reason of the operation of the sewage-disposal plant at Sheppard Field.

On July 7, 1942, Fred A. Lower filed a claim with the War Department in the aggregate amount of $93,500 ($18,500 for property damage, loss of use, and inconvenience and discomfort; and $75,000 for loss of anticipated profits), for administrative consideration by the Department under the provisions of the act of July 3, 1943 (57 Stat. 372; 31 U. S. C. 223b). In view of the introduction of H. R. 3616 no action has been taken on this claim. Furthermore, there is no statute or appropriation available to the War Department under which the portion of the claim for loss of profits may be administratively settled.

On November 6, 1944, Fred A. Lower executed and filed with the War Department an amended claim and acceptance agreement which reads as follows:

"The claim, dated July 7, 1942, heretofore asserted by the undersigned [F. A. Lower] against the United States in the amount of $93,500, is hereby amended by substituting the sum of $10,000 as the amount claimed. The undersigned certifies that the foregoing claim, as amended, is correct and just and that payment therefor has not been received from the United States; and the undersigned agrees to accept the latter amount in full satisfaction and final settlement of all claims of the undersigned against the United States for damages of every nature, character, and description on account of the operation of the sewage-disposal plant at Sheppard Field, Wichita Falls, Tex., from and after the month of June 1941." After careful consideration of all the facts and circumstances, it is the view of the War Department that the amount of $4,000 ($100 per month for a period of 40 months) may reasonably be determined to constitute the diminution of rental value of the property of Mr. Lower; that the amount of $1,000 would constitute a reasonable compensation for the annoyance, discomfort, and inconvenience suffered by Mr. Lower as a result of the operation of the sewage-disposal plant; and that the amount of $5,000 may reasonably be determined to constitute a fair settlement for the loss of profits incurred in the operation of Mr. Lower's business as a result of the operation of the said sewage-disposal plant at Sheppard Field. Since it is unlikely that a court proceeding would develop any additional evidence which would be of material assistance in settling this claim, particularly in view of the fact that Mr. Lower has agreed to accept the amount of $10,000 in full satisfaction and final settlement of all claims against the United States for all of his damages arising out of the operation of said sewage-disposal plant, it is recommended that H. R. 3616 be so amended as to authorize and direct the Secretary of the Treasury to pay to Fred A. Lower the sum of $10,000 in full settlement of all claims against the United States for the damages sustained by him.

It is, therefore, recommended that the title of the bill be amended to read "A bill for the relief of Fred A. Lower." It is further recommended that the text of the bill be amended to read as follows:

"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 be, and he is hereby, authorized and directed to pay, out of any money in the Treasury not otherwise appropriated, to Fred A. Lower, of Wichita Falls, Texas, the sum of $10,000, in full settlement of all claims of the said Fred A. Lower against the United States on account of property damage and personal injuries resulting from the flow of sewage waters from Sheppard Field, Texas, into a certain creek, which runs through the land of the said Fred A. Lower: Provided, That no part of the amount appropriated in this Act in excess of 10 per centum thereof shall be paid or delivered to or receivea by any agent or attorney on account or services rendered in connection with this claim, and the same shall be unlawful, any contract to the contrary notwithstanding. Any person violating the provisions of this Act shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined in any sum not exceeding $1,000."

The fiscal effect of the bill, if amended as above recommended, is manifest. The Bureau of the Budget advises that there is no objection to the submission of this report.

Sincerely yours,

AFFIDAVIT OF F. A. LOWER

HENRY L. STIMSON,
Secretary of War.

Before me, the undersigned authority, on this day personally appeared F. A. Lower, known to me to be the person whose name is subscribed to this instrument, and after being by me duly sworn, upon his oath deposes and says:

My name is F. A. Lower. I am the sole owner of the Wichita Gas Engine Works in Wichita Falls, Tex. Prior to 1942 I operated a machine shop known as the Wichita Gas Engine Works on the Burkbennett Road near Wichita Falls, Tex. I had all the necessary facilities and equipment for the operation of an up-to-date machine shop. I had the following machinery: Six lathes; one shaper; one plainer; one 6-foot radial drill; Davis key-seating machine; No. 4 Cincinnati single pulley drive, full Universal milling machine; horizontal Betts boring mill with table travel of 60 inches each way; Pond's vertical boring mill, 74-inch capacity; 24-inch surface grinder, magnetic chuck; six heavy turret machines, 24-inch swing; four drill presses; Wells' metal hand saws; woodworking equipment; No. 50 Heald grinder; small micrometer and precision working tools.

That prior to 1940 I had been operating this machine shop at said location for some 15 years, and keeping a crew of from 12 to 15 men constantly employed during most of said time. That during, the year 1942 Sheppard Field began running its sewage disposal through the property owned by me and in close proximity to my machine shop and also my residence; that the odor from this sewage was so sickening, obnoxious, and nauseating that a person could hardly stand to be in the vicinity of same. That immediately after this sewage began running through my property, my employees began complaining about the condition, and advised if something was not done about the same, that they were not going to work under such conditions, and early in the summer of 1942 all of my employees quit my employment by reason of the conditions created by said sewage-disposal plant.

That if I had been able to continue said business, I would have been able to have operated my machine shop with full capacity with the machinery above enumerated, and with the crew I formerly had, and would have been able to make a reasonable gross income from the operation of this plant during the years 1942, 1943, and 1944 of at least $250 per day, and after deducting the necessary expenses I would at least have had a profit of at least $150 per day. I know of my own knowledge that all the machine shops in this area have been running at full capacity; that many of them have been unable to handle the work that has been offered them; that two big machine plants here, Wilson Manufacturing Co. and Wichita Engineering Co., have had more contracts than they could handle, and they have sublet numerous contracts to various machine shops located in this area. I know of my own knowledge that they have been unable to handle all of these subcontracts, and that they have had to go outside of tnis area in order to get subcontractors to handle the same.

That the ordinary prices per hour for different machinery is as follows: Lathe, $3; planer, $7.50; boring mill, $5; shaper, $3; drill presses, $3; surface grinder, $3. That this is the ordinary price which has been charged in this vicinity per hour for the past 2 years, and I would have been able, if it had not been for this sewage-disposal plant, to have kept my machine shop going at full capacity, and charged the above rates for my work.

I have been contacted numerous times by persons here, as well as in Dallas and Houston, requesting that I accept subcontracts for the manufacture of war materials, and have had to turn all of these contracts down by reason of the fact that I could get no one to work for me under the conditions that existed.

I am submitting and attaching hereto a copy of an appraisement made by two reputable real-esatte men of Whita Falls, Tex., showing the damages sustained by me by reason of the construction and operation of the sewer ditch. The originals of these statements have been furnished the War Department and are now in their files in Washington.

We have submitted statements to the War Department by Jack Meer, C. G. Hughes, who operates the Wichita-Hughes Co., and Bill Walker, who is foreman of the Clark Machine Co. at Wichita Falls, Tex., which conclusively show that if it had not been for the construction and operation of this sewer ditch that F. A. Lower could have operated his machine shop at full capacity, and for a portion of the year 1941 and for the years 1942, 1943, and 1944 could have reasonably expected to make a profit of $25,000 per year net. It is my best judgment that by the construction and operation of this sewer ditch that I have been damaged in the following amounts:

Loss of profits for the years 1942, 1943, and 1944, $25,000 per year. Actual depreciation of my property, described in appraisement which is attached hereto..

Total....

$75,000

15, 000

90, 000

I have furnished the War Department numerous statements by disinterested individuals showing the conditions that existed by virtue of the construction and operation of this sewer-disposal plant at Sheppard Field, which statements show that it would have been impossible for anyone to have maintained a business near this disposal ditch.

F. A. LOWER.

Sworn to and subscribed before me, this the 9th day of February, A. D. 1945.
[SEAL]
MINEOLA H. PATELLO,
Notary Public, Wichita County, Tex.

WICHITA FALLS, TEX., November 7, 1944.

Subject: Wichita Gas Engine Works, F. A. Lower, sole owner.

To Whom It May Concern:

APPRAISEMENT OF PROPERTY

Approximately 10 acres of land.

One 12-room house, well constructed, concrete foundation; concrete front porch; concrete back porch; 2 by 6 studding; double walls; double floors; hardwood floors throughout downstairs, and 1 tile bath, all in good condition.

One machine-shop building, steel frame, brick walls, 50 by 60 feet, concrete floors, with extension at back constructed of sheet iron, approximate dimensions 70 by 32 feet.

One 5-room frame house, with bath, and modern throughout.

OUTBUILDINGS

Double garage with concrete floor attached to same; storehouse approximately 12 by 60 feet with concrete floor; one storage building 16 by 30 feet; one all-steel building 16 by 20 feet, equipped with steel crane, 12-foot walls; one storage room 20 by 40 feet, frame building, sheet-iron roof.

I have been engaged in the real-estate business in Wichita Falls and vicinity for the past 25 years. I know the conditions surrounding the sale of property in Wichita Falls and vicinity during the year 1941 and subsequent thereto. During 1941 and subsequent thereto there has been an extremely great demand for residential property and a ready sale for such property. I have known the above property generally for the past several years, and it is my opinion that the cash market value of the above property during the year 1941 would have been from $18,000 to $20,000. I have been acquainted with conditions that have existed relative to the sewage-disposal plant at Sheppard Field. I have been near this property on several occasions and know of the obnoxious odors that have emanated from this sewage-disposal plant during the years 1942 and 1943. I have this morning inspected the above property, and also the open sewer ditch that runs in close proximity to this property from Sheppard Field, and it is my opinion that if a person could find a buyer at all for this property, that it would be impossible to obtain more than $8,000 to $10,000 for same at this time.

Remarks. The housing conditions in Wichita Falls was rather acute immediately prior to the time Sheppard Field was established. After the establishment of Sheppard Field the housing shortage became much more acute, and there was a great demand for the purchase of such property. Many buildings were erected along the Burkburnett Road opposite Sheppard Field, and in my opinion Mr. Lower would not have had any trouble in selling this property prior to the time that the sewer-disposal plant was erected at Sheppard Field, and this sewage disposal ran through his property. I have no doubt that he could have obtained a consideration of from $18,000 to $20,000 for this property. I think it was well worth it during the year 1941, and I doubt whether he could sell this property at any price at this time. I do not believe that anyone who had as much as $10,000 would invest it in property in such close proximity to an open sewer ditch. It is my opinion that it would be very difficult to get any appreciable amount for this property at this time, and I know it would not bring more than $8,000 or $10,000. Mr. Lower told me this morning he would sell the property for $10,000 and pay $2,000 as a commission.

R. P. WILLIS.