#### THE OHIO RIVER CONTRACT COMPANY v. THE UNITED STATES.

[No. 30247.

Decided October 24, 1910.]

*On the Proofs.*

The claimant is a contractor building for tbe Government a part of a Chanoine dam on tbe Ohio River, tbe work to be completed witbin a designated time. Before tbe work is completed tbe engineer in charge begins tbe raising of wickets in tbe river bed on another part of tbe dam not covered by tbe claimant’s contract. Tbe claimant protests upon tbe ground that if tbe *543river should rise the wickets would deflect the current against the claimant’s contract work, so as to undermine and injure it. This actually takes place. The claimant sues upon the ground that the erection of the wickets by the engineer in charge after notice and protest'was, under the circumstances of the case, an improper interference with the contractor’s work.

I.Where a contractor’s work was hindered by the engineer in charge raising wickets in the bed of a river which deflected the current so as to undermine and injure the contractor’s work, it must be held that the damage suffered by the contractor was the immediate and proximate result of the engineer’s action.

II.Where extra work, not contemplated by the contract, was made necessary by an act of the officer charged with its execution, the contractor should recover the reasonable cost of it, though the officer’s act was not directly connected with the subject-matter of the contract/'

III.Where the engineer in charge of contract work placed an obstruction in a river bed which resulted in deflecting the current of the river upon 'the claimants’ work, causing damage which had to be repaired before the contract work could be completed, the act of the engineer was an improper interference with the contractor’s work; and it is well settled that for any improper interference with the work of a contractor the United States, like individuals, are liable.

IY. A provision in a contract whereby the contractor assumes responsibility for the safety of his “ *employees, plant, and materials, and for any damage or injury done by or to them from any source or cause,”*can not be construed so as to include damage or injury resulting from acts of the officers or agents of the Government.

*The Reporters'1*statement of the case:

The following are the facts of the case as found by the court:

I. Petitioner is a body corporate, duly incorporated under the laws of the State of Indiana, is a citizen of the United States, and is the owner of the claim herein sued upon, no part thereof having been sold or assigned to any person or corporation.

II. On the 24th day of May, 1905, claimant entered into a contract in writing with Map William L. Sibert, Corps of Engineers, U. S. Army, on behalf of the United States, by which it was agreed that claimant would furnish all neces*544sary labor, material, and appliances, and build about 100 feet of Cbanoine dam: two bear-trap dam foundations, each 93 feet long; and a Chanoine weir, 160 feet long; three piers and abutment at Dam No. 3, Ohio River, at Glenosborne, Pa., about 11 miles below Pittsburg, all in strict accordance with the specifications and plans referred to and made part of the contract, at and for unit prices therein set forth.

By specification 36, attached to and made a part of the contract, it was agreed that the United States engineer officer in charge of the work should have the right to determine how much of the channel of the river should be closed at any one time, the exact plan of procedure, however, to be governed by conditions existing at the time of executing the work, and of which the said engineer officer was to be the judge.

By specification 44, attached to and made a part of said contract, it was understood and agreed that the contractor, the claimant, was to assume, and did assume, full responsibility for the safety of his employees, plant, and materials and for any damage or injury done by or to them from any source or cause.

By specification 70, attached to and made a part of the contract, it was provided as follows:

“All cofferdams necessary to unwater work for laying concrete, or other purposes, shall be provided by the contractor, the original cost, rebuilding, and maintenance of which shall be included in the unit prices for items of work specified. At the end of each working season the contractor shall remove at his own expense any cofferdam or other obstruction to navigation over the site of the work, if required by the engineer.”

It was further agreed that work on said contract should commence within twenty calendar days after the date of the notification of approval of the contract by the Chief of Engineers, United States Army, and the permanent construction work was to be completed by October 31, 1906. The foundations and.piers for the bear-trap gates were to be ready for the gates on or before June 30, 1906, and in case the work was suspended on account -of lack of funds the dates of completion, above specified, were to be considered as extended for such period as the work was thereby suspended.

*545It was further agreed as follows:

“ Unless extraordinary and unforseeable conditions supervene, the time allowed in these specifications for the completion of the contract to be entered into is considered sufficient for such completion by a contractor having the necessary plant, capital, and experience. If the work is not completed within the period stipulated in the contract, the engineer officer in charge may, -with the prior sanction of the Chief of Engineers, waive the time limit and permit the contractor to finish the work within a reasonable period, to be determined by the said engineer officer in charge. Should the original time limit be thus waived, all expenses for inspection and superintendence and other actual loss and damages to the United States due to the delay beyond the time originally set for completion shall be determined by said engineer officer in charge and deducted from any payments due or to become due to the contractor: *Provided, however,*That the party of the first part may, with the prior sanction of the Chief of Engineers, waive for a reasonable period the time limit originally set for completion and remit the charges for expenses of superintendence and inspection for so much time as in the judgment of the said engineer officer in charge may actually have been lost on account of unusual freshets, ice, rainfall, or other abnormal force or violence of the elements, or by epidemics, local or state quarantine restrictions, or other unforeseeable cause of delay arising through no fault of the contractor, and which prevented him from commencing or completing the work or delivering the materials within the period required by the contract: *Provided further,*That nothing in these specifications shall affect the power of the party of the first part to annul the contract as provided in the form of contract adopted and in use by the Engineer Department of the Army.”

III. On July 28, 1905, claimant company entered into a separate and distinct contract with the United States to furnish and put in place two bear-trap gates in the work covered by the contract referred to in the preceding finding.

IV. The time for the completion of the contract sued upon, of May 24, 1905, expired October 31, 1906. The final completion of said work could not be made until the work to be done under the contract of July 28, 1905, was completed. The work of constructing said bear-trap gates was very much delayed owing to the failure of the Variety Iron and Steel Works Company to furnish the same in accordance with its contract with the Ohio Eiver Contract Com*546pany, so that, on April 26, *1907, the*claimant company requested the United States' engineer, Maj. H. C. Newcomer, for an extension of ninety days’ time on the contract for furnishing and putting in place the bear-trap gates and also for completing the work to be done under the contract sued- upon. On May 16, 1907, the time for completion of the contract of July 28, 1908, was extended for a reasonable period under conditions which were thereafter complied with. The time for the completion of the work to be done under the contract sued upon was not extended, but permission was granted the contractor to continue work under said contract.

V. The work contracted to be done under the contract sued upon and also the contract of July 28, 1905, was completed in accordance with the specifications except as to time. The payment in full was made therefor.

VI. After the time for the completion of the contract sued upon had expired, but subsequent to the extension of the time for the completion of the bear-trap gate contract of July 28, 1905, to wit, October 18, 1907, the engineer officer of the United States in charge of the work for the Government commenced raising 20 wickets in the river bed on a part of the dam not included in or covered by the contract sued upon or any other contract with claimant company.

The purpose of raising these wickets by the United States on the occasion referred to was to use them in the formation of a cofferdam which the Government desired to build around a leak in the air pipe by which said wickets were designed to be mechanically raised or lowered, thereby enabling it to pump out the water within the said cofferdam so as to expose the broken pipe. That part of the cofferdam formed by said wickets extended about 90 feet transversely across the river and was located at its nearest point within about 90 feet of the cofferdam of the claimant.

At the time said wickets were raised the river was at a stage of water of 5.7 feet. The claimant company, through its president, on the date aforesaid protested to the engineer in charge against the raising of said wickets and informed him that he knew the river better than said engineer officer did and that there was no telling from one day to *547the nest when the river would rise 10 feet overnight. He informed said engineer officer that if a rise should come when those wickets were up it would force the current against his cofferdam with such speed and power that it would undermine the same and injure or destroy it. The engineer replied that it was necessary to go on with raising the wickets in order to repair said broken pipe, and that under any circumstances he would be compelled to keep them up until he was through with said work. The president of said claimant company thereupon informed said engineer officer that.if the Government persisted in raising those wickets it must take the responsibility in case of any damage to the cofferdam of claimant, as the claimant company would surely hold the Government liable therefor. The wickets were raised and the cofferdam constructed around the broken pipe, and so remained until after November 12, 1907. A similar obj ection had previously been made by the claimant company to the engineer officers to the raising of the wickets, and for that reason the wickets at that time were not raised.

The various stages of the river at said Dam No. 3 during the period from October 18 to November 14, 1907, when the wickets were raised, were as follows:



*548After the river fell, on November 13 and 14, it was discovered that claimant’s cofferdam had been undermined by the action of the current of water during the rise caused by the raising of said wickets, and on about 80 feet of the up and down stream arm and on about 50 feet of the lower arm of the cofferdam the top timbers or ties and some sheeting had been washed away. The filling had largely been washed out of the coffer, and a hole had been scoured near the lower corner of the cofferdam to a depth of about 10 feet below the original bed of the river at said point. Claimant immediately began work repairing the cofferdam, using therefor an orange-peel boat, a dredge boat, mechanics, laborers, a superintendent in charge of the work, lumber, bolts, etc., with which material, tools, and implements the cofferdam was repaired and filled with gravel and sand. The expenses to the claimant of making such repairs, which the court finds were reasonable, were as follows:

Orange-peel boat from November 15 to 28, inclusive, 14 days, at $15 per day_ $210

One dredge boat from November 15 to 28, inclusive, 14 days, at . $110 per day_1, 540

One carpenter, 2 days, at $4.50 per day_ 9

Two carpenters, 2 days, at $3.50 each per day_ 14

Eight laborers, 2 days, at $2 each per day-32

One superintendent, 14 days, at $5 per day- 70

Lumber, 1,000 feet, at $20 M- 20

Total_1, 895

VII. The United States Weather Bureau maintained an office at Pittsburg during the period involved in this case, to which reports were made from numerous points lying within the watershed of the Ohio River as to the condition of the weather generally, including precipitation, and the stages of the water at different points on the rivers Ohio, Allegheny, and Monongahela. These reports were received at said office regularly about 8 a. m. of each day, and on special occasions more frequently. The information thus furnished was summarized and disseminated by publication in the daily papers at Pittsburg, by card sent out by messengers and through the post-office to the public generally, and by telephonic communication to those particularly interested in river news. This information included also forecasts as to the probable *549stages of water or tendency of the rivers aforesaid to rise or fall. This latter information particularly was telephoned to the dams on the Ohio River, including Dam No. 3, at least once a day; sometimes oftener. When such information was received at Dam No. 3 it was habitually announced to the contractor or contractor’s agents on the work either by personal communications or through megaphone.

VIII. Prior to the time of the freshet in November, 1907, and before the wickets were raised, the cofferdam had been protected by stone of the size of a cubic yard and some half a yard and from that down to four or five cubic feet in size, which were placed at the upper outer corner of the cofferdam, and also stone were placed down on the lower arm of the outer corner; riprap stone were also placed below the crib that protected the cofferdam, which was a part of the permanent work and belonged to the Government. After the wickets were raised no precautionary measures were taken by the claimant company to deposit stone about the foot of the cofferdam to protect it, as the rises in the river were sudden and the claimant company received no sufficient notice therefor. To have so protected the cofferdam it would have been necessary to transport stone of sufficient dimensions and to have employed labor to put them in the proper place. The quantity of stone, the cost thereof, as well as the cost of labor therefor, is not shown, and if such stone had been so placed, whether or- not it would have protected the cofferdam is problematical.

IX. Claimant demanded of Maj. H. C. Newcomer, United States engineer officer at Pittsburg, Pa., compensation for the expenses of repairing said cofferdam, but payment thereof was refused on the ground that the contract had been completed and final payment made thereon, and that said engineer officer was without authority to pass upon the claim presented. No other action than as aforesaid was taken on this claim prior to the filing of the petition herein.

*Mr. L. T. Michener for the claimant. (Messrs. Dudley c& Michener and P. G. Michener*were on the brief.)

1. The conduct of the officer in raising the wickets and turning the force of the current against the cofferdam was *550in violation of claimant’s rights, and was such an improper interference as entitles claimant to recover for the amount of the damages done. This is a statement of a well-established rule of law *(Houston Construction Co. case,*38 C. Cls. R., 724, 736; *Kelly's case,*31 C. Cls. R., 361, 374; *Ciarle's case,*6 Wall., 543, 545; *Smith's case,*94 U. S., 214, 217; *Barlow's case,*184 U. S., 123, 137.) Claimant was there by virtue of the contract in suit, on which the time limit had been waived, and was going on with the work when the wickets were raised and the damage done.

The contract was for the erection and maintenance of the cofferdam by the contractor, and the contractor alone had the right to remove it (spec. 70). No one had the right to injure or destroy it in whole or in part. It was clearly implied — inevitably implied — and just as plainly in the contract as if it had been written there, that the Government should do nothing that would work damage to the cofferdam. The obligation of the contractor to erect and maintain the cofferdam created an obligation by the Government, if not expressed in words, that it would do the cofferdam no injury. The law would be a mockery if there were not this correlation of obligation — this reciprocity of right. *(Ingram's case,*32 C. Cls. R., 164; Bishop on Contracts (enlarged ed.), sec. 184; Hudson on Building Contracts (3d ed.), 202, 303, 311; *State*v. *Laclede Gas Light Co.,*102 Mo., 472.) .

The current of the river had to enter into every consideration of the contract and its fulfillment. But for river and current there would have been no contract, dam, cofferdam, or wickets. The contractor had the right to expect and insist that ‘the Government would not throw that tremendous current against the cofferdam. The contractor had to expect the power of nature, and it must be held to have so contracted, but did not to meet the power of nature when directed or increased by the hand of the United States, and the latter must be held to have contracted not to turn that power against the contractor.

For interesting discussions of implied, inferred, constructive, quasi, or contracts created by law, see 3 Black. Com. ;side p. 158; 2 Page on Contracts, sec. 771; Bishop on Contracts, Ch. VIII; *Procht.*v. *Daniels,*20 Colo., 100,103; *Hert-*
      *551
      *zog*v. *Hertzog,*29 Pa. St., 465; *Columbus, etc., By.*v. *Gaff-ney.,*65 Ohio St., 104,113; *Siems*v.- Bank, 7 S. Dak., 338, and the authorities above cited.

2. The act here complained of was not tortious. The leading case is *Lynah*v. *United States,*188 U. S., 445. The question arose in another form in *Alexander's case,*39 C. Cls. R., 383.

The authorities are reviewed at length in the two cases above named, in *Manigault*v. *Springs,*199 U. S., 473, 484, 485, and *Peabody's case,*43 C. Cls. R., 5, 16-18. The injury to cofferdam does not present a case of unauthorized wrong, or of the misfeasance or nonfeasance of an officer, but it is one of the failure of the Government to meet an implied contract obligation to take due care not to destroy or damage claimant’s property. The elements of tort are absent. *Gulf Transit Co. case,*43 C. Cls. R., 183.

*Mr. P. M. Ashford*(with whom was *Mr. Assistant Attorney-General John-Q.*Thompson) for the defendants.

Peelee, Ch. «J.,

delivered the opinion of the court:

The claimant company, by a written contract with the Government under date of May 24, 1905, obligated itself to furnish all appliances, material, and labor necessary therefor and to build 100 feet of Chanoine dam, certain bear-trap foundations, a Chanoine weir, three piers and abutment, etc., at Dam No. 3, Ohio River, below Pittsburg, the work to be completed on or before October 31, 1906.

The work was not completed within the contract time, but the claimant was permitted to continue and the work was otherwise completed according to the specifications and paid for.

A subsequent contract, however, entered into July 28,1905, between the same parties for two bear-trap gates in connection with said work was extended for a reasonable time, and the work thereunder had to be completed before the work under said first contract could be completed.

While the work was thus in progress, by permission of the Government under the first contract-, but during the period of extension under the second contract, the engineer officer *552in charge of the work, on behalf of the Government, commenced the raising of 20 wickets in the river bed on a part of the dam not covered by the claimant’s contract, the purpose being to use said wickets in the formation of a cofferdam which the Government desired to build around a leak in the air pipe designed to mechanically raise and lower said wickets and thereby pump out the water within the cofferdam and expose the broken pipe.

That part of the cofferdam formed by said wickets extended about 90 feet transversely across the river and was within 90 feet of the cofferdam of the claimant.

The claimant company, through its president, protested to the engineer officer aginst the raising of said wickets on account of the uncertainty of the rise of the water in the river; that if a rise should come when the wickets were up it would force the current against the cofferdam with such speed and force as to undermine and injure or destroy it. A similar protest previously made by the claimant company against the raising of said wickets had been respected and the wickets were not raised, but on this occasion the engineer insisted upon going ahead and' raising the wickets in order to repair said broken pipe. The president of said claimant company thereupon notified the engineer officer that if any damage was done to the cofferdam of the claimant it should hold the Government liable therefor.

The wickets were raised October 18, 1907, and continued raised until November 14, 1907, when it was discovered that by reason thereof the cofferdam of the claimant had been undermined by the current and force of the water during the rise and about 80 feet of the up-and-down stream arm, about 50 feet of the lower arm of the cofferdam, the top timbers or ties, and some sheeting had been washed away and the filling largely washed out of the cofferdam, and a hole scoured near the lower corner of the cofferdam to a depth of about 10 feet below the original depth of the river at said point, all without fault on the part of the claimant company, by reason of which it was required to and did repair the cofferdam, as set forth in the findings, at an extra cost to it of $1,895. Hence this action.

*553The claimant’s theory and contention is that the damage caused by the raising of the wickets was an improper interference with its work, and in support of its contention cites the cases of *United States*v. *Smith*(94 U. S., 214, 217), *Houston Construction Co.*v. *United States*(38 C. Cls. R., 724, 736), and other cases therein cited. In the latter case the court, following the decisions of the Supreme Court, said:

> *“*It is well settled that for any improper interference with the work of a contractor the United States, like individuals, are liable.” *(United States*v. Speed, 8 Wall., 77, 84; *United States*v. *Smith, supra,*and 7 Hill (N. Y.), 62.)

Hence, if the damage resulting from the raising of the wickets was an improper interference with the work of the claimant, the breach would entitle it to recover. But in the cases above cited, as well as those referred to by the claimant, there was a suspension or stoppage of the particular work of the contractor, neither of which occurred in the present case. Here the time of completion was prolonged, not by reason of the suspension or stoppage of the work, nor yet by any changes in the plan of construction, but because of the extra work made necessary by reason of-the damage resulting from the raising of the wickets.

There is no controversy but that the officer of the Government in charge of the work had the lawful right to raise the wickets in the necessary prosecution of the work under his charge in the'improvement of the navigation of the river; and that if in that lawful act private property of the claimant company was taken or destroyed as the proximate result thereof, the law would imply a contract to make compensation therefor under the fifth amendment of the Constitution. *(Manigault*v. *Springs,*199 U. S., 473-484.) But if we were to assume that the claimant had a property right in the work he had performed to the extent of his contract, would that right extend to a claim for damages arising from some lawful act of the officer outside the contract ?

In other words, would the damages thus resulting be a breach of the contract; and if so, upon what theory ? Had the engineer in charge suspended or stopped the work, thereby preventing performance on the part of the con*554tractor, or bad he so hindered the contractor in his performance as to increase the cost to him, the Government would clearly be liable. Here, it is true, the work was hindered by the lawful act of the officer of the Government in raising the wickets, and while the raising of the wickets was in no way connected with the claimant’s contract or work, the immediate and proximate result was the damage to the claimant’s cofferdam, the repair of which cost him the sum found. The claimant was in no way at fault. Whether he could have protected himself against the damage done by depositing stone is by no means clear, and besides the cost of stone and labor which would have been required might have equaled or exceeded the damage done. The second contract (July 28, 1905) for the bear-trap gates operated to extend the time of completion under the first contract, as under the second contract, which had been extended, the work had to be completed before the first contract sued upon could be completed. Hence the claimant company is at no disadvantage on that account.

The assumption of responsibility by the claimant under specification 44, for the safety of his employees, plant and materials, and for any damage or injury done by or to them from any source or cause, was not intended by the parties to include damage or injury resulting from the acts of the officers and agents of the United States, nor can the specifications be so construed.

Whether the claimant company had procured and deposited the stone necessary to protect or assist in protecting its cofferdam from so washing or repaired the damage, as it did, the work was extra and outside the. contract, made necessary by the lawful act of the officer charged with the execution of the contract, and, having been accepted by the proper officers of the Government, the claimant is entitled to recover on *quantum*meruit, if not on the basis of a taking under the fifth amendment of the Constitution. Upon either theory of the case the facts are sufficiently pleaded as ruled in *Clark*v. *United States*(95 U. S., 539-543), where in this respect it was said:

> “ If objected that the petition contains no count upon an implied contract for *quantum*meruit, it may be answered *555that the form of the pleadings in the Court of Claims are not of so strict a character as to preclude the claimant from recovering what is justly due him upon the facts stated in his petition, although due in a different aspect from that in which his demand is conceived.”

The conclusion we have reached is certainly just and fully supported by the findings and as well by the law applicable thereto. As between individuals there would be no controversy as to the claimant’s right to recover. We must, therefore, hold that the claimant is entitled to recover judgment against the United States for the actual cost of the repair, in the sum of $1,895, which is accordingly ordered.

Howry, J., was not present when this case was tried, and took no part in its decision.