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FEBRUARY 22, 1945.-Committed to the Committee of the Whole House and ordered to be printed

Mr. COMBS, from the Committee on Claims, submitted the following

REPORT

[To accompany H. R. 904]

The Committee on Claims, to whom was referred the bill (H. R. 904) for the relief of Fred A. Lower, having considered the same, report favorably thereon with amendments and recommend that the bill as amended do pass.

The amendments are as follows:

Page 1, after the enacting clause, strike out the remainder of the bill. Insert in lieu thereof

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 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 received by any agent or attorney on account of 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.

Amend title so as to read "For the relief of Fred A. Lower."

The purpose of the proposed legislation is to pay the sum of $10,000 to Fred A. Lower, of Wichita Falls, Tex., in full settlement of all claims against the United States for property damage and personal injuries as a result of the flow of sewage waters from Sheppard Field, Tex., into a certain creek, which runs through the land of the said Fred A. Lower.

STATEMENT OF FACTS

Fred A. Lower, of Wichita Falls, Tex., for a period of years has been the owner of 7.87 acres of land located on the west side of United States Highway No. 277, 1 mile north of the city limits of Wichita Falls, and approximately 1,100 feet south of Sheppard Field, Tex.

In 1924, Mr. Lower constructed a two-story frame residence and a brick building which was used as a machine shop for the reconditioning of worn-out engines. It appears that this business, under the trade name of the Wichita Gas Engine Works, grew from a small beginning to a sizeable enterprise employing 20 persons in the year 1941 with a gross income of $75,806, and a net taxable income of $17,904. In 1941, Mr. Lower, the sole owner of the Wichita Gas Engine Works, disposed of the usable engines and shop machinery, but in the latter part of 1941 or the early part of 1942 he purchased new and heavier machinery, and has since engaged principally in the production of war materials.

In June 1941 the construction of barracks and other buildings was begun at Sheppard Field, and in August of that year 800 Army troops arrived at the base. By the 1st of October 1941, between 6,000 and 7,000 men were stationed there, and by January 1, 1942, the base contained approximately 26,000 troops. Until the latter part of November 1941 when a sewage-disposal plant, which had been constructed, was placed in operation, the raw sewage from Sheppard Field was permitted to be drained into a small creek which ran from the base in a southwesterly direction through Mr. Lower's land. A small lake had been constructed on Mr. Lower's land by means of damming the creek, and this was stocked with fish. The lake soon became filled with sludge composed of organic sewage matter. Troops continued to arrive at Sheppard Field and the disposal plant shortly became taxed beyond its designed capacity. This greatly increased the amount of sludge which flowed into the creek and, in turn, into Mr. Lower's lake. An addition to the sewage-disposal plant was completed in July 1943 and the plant is now operated normally, although the effluent from it still drains into the creek.

As a result of the pollution of the creek and the resulting obnoxious odors caused by the discharge of sewage from Sheppard Field, Mr. Lower asserts that his land became valueless and that he has been forced to discontinue operation of the Wichita Gas Engine Works because of the refusal of his employees to work under the existing disagreeable conditions. On July 7, 1942, Mr. Lower claimed that he had sustained the following pecuniary damages:

Item 1: Cash market value of land and improvements immediately prior to construction of sewage-disposal plant at Sheppard Field... $18,500 Cash market value at present time...

Item 2: Loss of anticipated profits from operation of machine shop located on above-described property

Total damages.

(?)

75,000

93, 500

The Chief of Engineers, under whose supervision Sheppard Field and its sewage-disposal plant were constructed, caused an inspection and appraisement of the damage caused to Mr. Lower's property to be made by appraisers in June and July 1944. The appraisers in their report, dated July 26, 1944, after finding that the water in the creek running through Mr. Lower's land had been polluted by effluent from the sewage-disposal plant at Sheppard Field, that such effluent had, in turn, contaminated the claimant's lake, that obnoxious odors had emanated from such effluent, and that Mr. Lower had been damaged therefrom, stated:

During the latter part of 1941 and the early part of 1942, sludge heavily laden with organic matter, and originating at the overloaded disposal plant at Sheppard

Field, began flowing through an open ditch which courses in a southwesterly direction through the subject tract. On this ditch is located the above-mentioned tank [lake]. This organic matter naturally began silting the lake and now the lake is completely filled with sludge composed of organic sewage matter mixed with a small percent of soil. This undigested sewage became a nuisance in the form of offensive odors emanating therefrom. The improvements on this tract are located very near the polluted ditch and tank [lake] and the claim for damages by the owner of this property is considered to be justified. The exact date of the beginning of this nuisance, the severity of same, and the termination date could not be determined, but it is estimated to have covered a period of some 15 months beginning in the early part of 1942. There were about 4 months of this time, during the summer of 1942, in which it was so disagreeable to the occupants of the houses that it was [they were] completely evacuated.

*

*

*

* * *

* 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. * 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 statement:

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 awhile, but did come back to work later. Other workers were all complaining about the smells. When hot weather came in the 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 has 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 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 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.

The War Department recommends the enactment of this legislation as amended.

Therefore, your committee recommends favorable consideration to the bill as amended and authorize the payment of the sum of $10,000 be made to Fred A. Lower.

Attached is the report of the War Department and other pertinent data.

Hon. DAN R. McGEHEE,

WAR DEPARTMENT, Washington, December 11, 1944.

Chairman, Committee on Claims, House of Representatives.

DEAR MR. MCGEHEE: The War Department is opposed to the enactment of H. R. 3616, Seventy-eighth Congress, a bill conferring jurisdiction upon the United States District Court for the Northern District of Texas to hear, determine, and render judgment upon the claims of Fred Lower, in its present form.

This bill would confer jurisdiction upon the United States District Court for the Northern District of Texas "to hear, determine, and render judgment upon, notwithstanding the lapse of time or any provision of law to the contrary, the claims of Fred Lower, Wichita Falls, Tex., against the United States for damages alleged to have been sustained as the result of the discharge of sewage by the sewagedisposal plant at Sheppard Field, Tex., into a creek flowing in close proximity to (1) the machine shop owned by the said Fred Lower and operated by him under the name of the Wichita Gas Engine Works, and (2) the home of the said Fred Lower." The bill further provides that, "Any suit brought under this act shall be instituted within 1 year after the date of enactment of this act," and that "the liability of the United States in any suit brought under this act shall be determined upon the same principles and measures of liability as in like cases between private individuals."

The Department, however, would interpose no objection to the enactment of the bill if it should be so amended as to authorize and direct the Secretary of the

Treasury to pay to Fred A. Lower the sum of $10,000 for the damages sustained by him as a result of the operation by the Army of the sewage-disposal plant at Sheppard Field in the vicinity of his property.

Fred A. Lower, of Wichita Falls, Tex., for a period of years has been the owner of 7.87 acres of land located on the west side of United States Highway No. 277, 1 mile north of the city limits of Wichita Falls, and approximately 1,100 feet south of Sheppard Field, Tex. In 1924, Mr. Lower constructed a two-story frame residence and a brick building which was used as a machine shop for the reconditioning of worn-out engines. It appears that this business, under the trade name of the Wichita Gas Engine Works, grew from a small beginning to a sizable enterprise employing 20 persons in the year 1941 with a gross income of $75,806, and a net taxable income of $17,904. In 1941, Mr. Lower, the sole owner of the Wichita Gas Engine Works, disposed of the usable engines and shop machinery, but in the latter part of 1941 or the early part of 1942 he purchased new and heavier machinery, and has since engaged principally in the production of war materials.

In June 1941 the construction of barracks and other buildings was begun at Sheppard Field, and in August of that year 800 Army troops arrived at the base. By the 1st of October 1941, between 6,000 and 7,000 men were stationed there, and by January 1, 1942, the base contained approximately 26,000 troops. Until the latter part of November 1941 when a sewage disposal plant, which had been constructed, was placed in operation, the raw sewage from Sheppard Field was permitted to be drained into a small creek which ran from the base in a southwesterly direction through Mr. Lower's land. A small lake had been constructed on Mr. Lower's land by means of damming the creek, and this was stocked wita fish. The lake soon became filled with sludge composed of organic sewage matter. Troops continued to arrive at Sheppard Field and the disposal plant shortly became taxed beyond its designed capacity. This greatly increased the amount of sludge which flowed into the creek and, in turn, into Mr. Lower's lake. An addition to the sewage-disposal plant was completed in July 1943 and the plant is now operated normally, although the effluent from it still drains into the creek. As a result of the pollution of the creek and the resulting obnoxious odors caused by the discharge of sewage from Sheppard Field, Mr. Lower asserts that his land became valueless and that he has been forced to discontinue operation of the Wichita Gas Engine Works because of the refusal of his employees to work under the existing disagreeable conditions. On July 7, 1942, Mr. Lower claimed that he had sustained the following pecuniary damages:

Item 1: Cash market value of land and improvements immediately prior
to construction of sewage-disposal plant at Sheppard Field..
Cash market value at present time.

Item 2: Loss of anticipated profits from operation of machine shop
located on above described property- - -

Total damages. .

$18, 500

(?)

75,000

93, 500

The Chief of Engineers, under whose supervision Sheppard Field and its sewage-disposal plant were constructed, caused an inspection and appraisement of the damage caused to Mr. Lower's property to be made by appraisers in June and July 1944. The appraisers in their report, dated July 26, 1944, after finding that the water in the creek running through Mr. Lower's land had been polluted by effluent from the sewage-disposal plant at Sheppard Field, that such effluent had, in turn, contaminated the claimant's lake, that obnoxious odors had emanated from such effluent, and that Mr. Lower had been damaged therefrom, stated:

"During the latter part of 1941 and the early part of 1942, sludge heavily laden with organic matter, and originating at the overloaded disposal plant at Sheppard Field, began flowing through an open ditch which courses in a southwestern direction through the subject tract. On this ditch is located the above-mentioned tank [lake]. This organic matter naturally began silting the lake and now the lake is completely filled with sludge composed of organic sewage matter mixed with a small percent of soil. This undigested sewage became a nuisance in the form of offensive odors emanating therefrom. The improvements on this tract are located very near the polluted ditch and tank [lake] and the claim for damages by the owner of this property is considered to be justified. The exact date of the beginning of this nuisance, the severity of same, and the termination date could not be determined, but it is estimated to have covered a period of some 15 months beginning in the early part of 1942. There were about 4 months of this time,

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