Reporter's Statement of the Case From March, 1918, to August 1, 1918, plaintiff was on the control board of the aeronautical division of the Signal Corps, the duties of which board were to investigate new types of aeroplanes and accessories and make recommendations covering these aeroplanes relative to their production for the use of the Army. This necessitated an intimate knowledge of the aeroplanes and engines, which plaintiff obtained by actual flying in order to determine the best types. He flew foreign types as well as domestic types. V. During the period from April 10, 1917, to June 5, 1917, plaintiff performed three flights in Government aircraft, as follows: May 8, 1 flight of 45 minutes. May 25, 1 flight of 65 minutes. During the period from June 5, 1917, to July 31, 1918, plaintiff performed twenty-nine flights as follows: August 9, 2 flights, 65 min. September 12, 4 flights, 1 hour and 15 min. October 10, 4 flights, 1 hour and 45 min. February 28, 10 flights, 1 hour and 55 min. March 2, 4 flights, 40 min. March 4, 2 flights, 1 hour and 10 min. March 30, 3 flights, 1 hour. During the period from June 1, 1920, to June 30, 1920, plaintiff was on a status of leave, and during this time made two flights: June 15, 1 flight, 47 minutes. June 16, 1 flight, 40 minutes. VI. Plaintiff received no increase in pay for flying for the periods of April 1, 1917, to July 31, 1918, and June 1, 1920, to June 30, 1920. VII. If plaintiff is entitled to increased aviation pay during the periods from April 1, 1917, to July 31, 1918, and from June 1, 1920, to June 30, 1920, he should receive $3,065.66. The court decided that plaintiff was entitled to recover. Opinion of the Court CAMPBELL, Chief Justice, delivered the opinion of the court: This case, in all material aspects, is controlled by the decision of this court in the case of Emmons v. United States, decided February 14, 1927, 63 C. Cls. 121. In Clark's case, 60 C. Cls. 589, 591, it was said: "When an officer is on duty requiring him to participate regularly and frequently in aerial flights, he is entitled to the pay provided for in the statute during the time he is on such duty from the day he is placed on such duty until he is detached there from." In Bradshaw's case, 62 C. Cls. 638, 644, it was said: "This service involved unusual hazard, and the purpose of Congress in providing for extra pay was to compensate for the hazard of the special service." See also Marshall's case, 59 C. Cls. 900; Matteson's case, 60 C. Cls. 880; and Lynch's case, 63 C. Cls. 91. It was said in Luskey's case, 56 C. Cls. 411, “that when an enlisted man is detailed for duty involving actual flying in aircraft, he is entitled to the pay provided for in the statute during the time he is detailed for such duty from the day of such detail until the detail expires" (p. 413). This decision was affirmed by the Supreme Court of the United States, 262 U. S. 62. In the course of the opinion it was said (p. 64): "Congress naturally supposed that there would be no detail to aircraft duty unless there was requirement or use for it, and when either ceased the detail would be revoked; but if made and not revoked, its duration constituted a service for which the officer must keep prepared and to which, therefore, the compensation was by the statute assigned." We regard this question as so thoroughly settled by these decisions that further discussion is unnecessary. On the question of the statute of limitations, see Cronin case, 62 C. Cls. 20; Soldiers and Sailors Civil Relief Act, 40 Stat. 440, section 205. Judgment should be awarded to the plaintiff. And it is so ordered. Moss, Judge; GRAHAM, Judge; and BOOTH, Judge, concur. Reporter's Statement of the Case FRANK D. SCHROTH, RECEIVER OF CAPE MAY REAL ESTATE CO., v. THE UNITED STATES [No. C-669. Decided February 20, 1928] On the Proofs Eminent domain; just compensation.-Just compensation allowed for the taking of certain lands by the President's proclamation of December 2, 1918, issued under authority of the act of October 6, 1917, as amended by the act of July 1, 1918. Counterclaim; contract for dredging; substantial performance by contractor.-In pursuance of a proviso contained in the ap propriation act of March 2, 1907, the company of which plaintiff is receiver agreed to perform the dredging work in the construction of a harbor suitable for commerce, of which 400 acres should have a depth of 30 feet. The inlet to the harbor was a Government channel with a permanent depth of 25 feet, which limited the availability of the harbor. The company dredged 250 acres of the harbor and a channel from the harbor proper to the inlet, both to a depth of 30 feet, a large portion of the remainder of the harbor having a depth of from 20 to 30 feet, making the harbor suitable for commerce. Held, that in the absence of actual damage the Government can not recover on a counterclaim for failure to attain a 30-foot depth over the entire 400 acres. The Reporter's statement of the case: Mr. Thomas F. Gain for the plaintiff. Mr. Ira Jewell Williams was on the brief. Mr. Dan M. Jackson, with whom was Mr. Assistant Attorney General Herman J. Galloway, for the defendant. The court made special findings of fact, as follows: I. The Cape May Real Estate Company is, and at the time hereinafter referred to was, a corporation created by and existing under and by virtue of the laws of the State of New Jersey. II. On July 17, 1920, the plaintiff, Frank D. Schroth, was appointed receiver of Cape May Real Estate Company by decree of the Court of Chancery of New Jersey, and immediately filed his bond, qualified as receiver, and entered upon the duties of his office. 358-28-c C-VOL. 65----4 Reporter's Statement of the Case III. The said plaintiff, Frank D. Schroth, receiver as aforesaid, and the Cape May Real Estate Company, by its officers and agents, have at all times borne true allegiance to the United States of America, and have not in any way voluntarily aided, abetted, or given encouragement to rebellion against the said Government. IV. The plaintiff, Frank D. Schroth, as receiver of the Cape May Real Estate Company, is the sole owner of the claim herein presented subject to encumbrances, liens, and transfers appearing herein in Finding XXVII. V. On May 4, 1903, the Cape May Real Estate Company acquired from Peter Shields and wife, by deed of conveyance, recorded in the office of the clerk of the county of Cape May, New Jersey, in Book 179, p. 393, approximately 390.70 acres of land at Cape May known as "Poverty Beach," no longer known as "Poverty Beach." The above-described deed covered a portion of the tract of land requisitioned by the President on December 2, 1918. On May 5, 1903, the Cape May Real Estate Company acquired by deed of survey and conveyance, and recorded in the office of the surveyor general at Burlington, New Jersey, in Book JJ, p. 241, approximately 437.72 acres of other land at Cape May, a portion of which was included within the requisitioned tract above referred to. On July 2, 1903, the Cape May Real Estate Company acquired from the Riparian Commission of the State of New Jersey, by deed recorded in the office of the Riparian Commissioners at Jersey City, New Jersey, in Liber P, p. 389, certain underwater lands at Cape May, New Jersey, extending into the Atlantic Ocean about 2,000 feet. On February 2, 1904, the Cape May Real Estate Company acquired from the Board of Proprietors of West New Jersey a deed of survey and conveyance, recorded in the office of the surveyor general at Burlington, New Jersey, Book JJ, p. 252, of surveys, an additional acreage at Cape May of approximately 1,771.81 acres of land. On January 17, 1907, the Cape May Real Estate Company acquired from the Riparian Commission of New Jersey by deed, recorded in Book 216, p. 459, in the office of the clerk of the county of Cape May, New Jersey, a grant of land Reporter's Statement of the Case under water at Cape May, New Jersey, which was adjacent and on the south boundary line of the mainland formerly acquired as aforesaid, beginning at the junction of Beach Avenue and Madison Avenue and extending into the Atlantic Ocean a distance of 4,000 feet. Under and by virtue of the above-mentioned conveyances the Cape May Real Estate Company, on the respective dates thereof, acquired the lands, including the underwater lands, a part of which are embraced in the requisitioned area. In 1903 the Cape May Real Estate Company prepared a plat of a part of its aforesaid lands, dividing the same into lots, blocks, and streets, known as plan A, and filed the said plan in accordance with law. The lands within the streets shown on plan A were dedicated to the city of Cape May, New Jersey. VI. By virtue of the authority of the act of Congress, approved October 6, 1917, c. 79, sec. 1, 40 Stat. 345, 371, as amended by the act of July 1, 1918, c. 114, 40 Stat. 704, 720, Woodrow Wilson, President of the United States, on December 2, 1918, issued a proclamation, a copy of which appears as "Exhibit A" to the plaintiff's petition in this case by the terms of which the President of the United States, on behalf of the United States of America, did take title to and possession of all that portion of the followingdescribed tract of land, not then owned by the United States, to wit: "Beginning at the point of intersection of the westerly line of Yale Avenue if extended in a northerly direction, with the high-water line of Cold Spring Harbor, which said avenue is shown on a certain plan of lots of the Cape May Real Estate Company, which said plan is called 'Plan A' and is duly recorded in the office of the clerk of the county of Cape May, New Jersey, in Plan Book No. 1, pages 31 and 32; thence in a general easterly, then southerly, and then westerly direction following the high-water line of Cold Spring Harbor, Cold Spring Inlet, and the Atlantic Ocean to its point of intersection with the westerly line of said Yale Avenue extended in a southerly direction; thence in a line of said Yale Avenue to the point of beginning. Containing in all three hundred and forty-nine acres, more or less, together with all improvements on said tract of land not now owned by the United States, and together with |