Calkins Dredging Co., Inc. v. State

• Decision Date: 24 February 1926
• Citation: Calkins Dredging Co., Inc. v. State, 131 S.E. 665, 191 N.C. 243 (N.C. 1926)
• Parties: CALKINS DREDGING CO., INC., v. STATE ET AL.
• Court: North Carolina Supreme Court

131 S.E. 665

191 N.C. 243

CALKINS DREDGING CO., INC., v. STATE ET AL.

Supreme Court of North Carolina

February 24, 1926

Proceeding by the Calkins Dredging Company, Incorporated, against the State and others invoking the original jurisdiction of the Supreme Court to hear claims against the State. Claim dismissed.

Proceeding commenced by Calkins Dredging Company, Inc., under C. S. § 1410, in the Supreme Court of North Carolina, invoking the original jurisdiction of said court, conferred by article 4 § 9, of the Constitution of North Carolina, to hear claims against the state, and to make recommendations with respect thereto, to the General Assembly, at its next session, for its action.

C. R Pugh and Thompson & Wilson, all of Elizabeth City, for claimant.

Dennis G. Brummitt, Atty. Gen., and Frank Nash, Asst. Atty. Gen for respondents.

CONNOR J.

The complaint herein, setting forth the nature and grounds of its claim, was filed by the Calkins Dredging Company, Inc., in the office of the clerk of this court on November 19, 1925. The said complaint was duly served on the Governor of the state. Thereafter, on December 1, 1925, answer on behalf of respondents was filed by the Attorney General and the Assistant Attorney General. A reply to said answer was filed by claimant on January 1, 1926. The proceeding was then heard and considered by this court upon the pleadings.

It appears from the allegations and admissions in said pleadings that claimant is a corporation, organized and existing under the laws of the state of Virginia, with its principal office and place of business in the city of Norfolk, in said state; that respondents, the fisheries commission of North Carolina, and the fisheries commission board of North Carolina, are agencies of the state of North Carolina, created by statutes duly enacted by the General Assembly of said state, for the purpose of enforcing the laws of said state relative to fish, and of promoting the fishing industry in said state. C. S.§ 1869; chapter 168, Pub. Laws 1923. The powers and duties of said respondents are defined in article 3 of chapter 37, Cons. Stat. 1919, and amendments thereto. By chapter 162, Pub. Laws 1923, the treasurer of the state was authorized and directed to issue bonds of the state of North Carolina, in the sum of $500,000; the proceeds of the sale of said bonds, or so much thereof as might be necessary, to be used by the fisheries commission "to open inlets, plant oysters, build hatcheries, provide equipment, and for such other necessary improvements of the fish and seafood industry of the state." It is expressly provided in said statute that the proceeds of the sale of said bonds shall be used by the fisheries commission for the purpose of opening inlets and providing necessary improvements to aid the fish and sea-food industry of the state. Chapter 162, Public Laws 1923, §§ 6 and 7.

Pursuant to authority vested in them by statute, respondents, the fisheries commission of North Carolina, and the fisheries commission board of North Carolina, during the year 1924, employed the Calkins Dredging Company, Inc., claimant herein, to open New Inlet, in Dare county, by dredging and excavating same, and thereby constructing a channel in said inlet from Pamlico Sound to the Atlantic Ocean. The said inlet, through which there was formerly a channel of sufficient depth and width for the free flow of water between the ocean and the sound, had, in recent years, been gradually closing, from natural causes. The fishing industry of the state would, in the opinion of respondents, be permanently benefited by the opening of this inlet and the construction of a channel which would permit sea fish to enter the sound through said inlet and would also permit the salt water of the ocean to flow into the sound where the water had become too fresh for proper oyster culture. The gradual closing of New Inlet, and of other inlets through the banks which lie between the Atlantic Ocean and the sounds into which the rivers of the state empty, has, in the opinion of experts, greatly diminished the supply of fish and sea food, and thereby retarded the growth and expansion of the fishing industry of the state. The opening of these inlets by dredging and excavations was a part of the constructive program for the development of the state authorized and directed by the General Assembly, at its sessions in 1921 and 1923.

The work, which claimant was employed to do at New Inlet, was completed on or about September 1, 1924, at a cost of about $115,000. It was approved and accepted by respondents. As the result of this work, an open channel between the Atlantic Ocean and Pamlico Sound through New Inlet had been constructed; there was a regular ebb and flow of the water through this channel, causing the level of the waters of the sound to rise and fall with the rise and fall of the tide in the ocean; there was a current of considerable volume and velocity flowing through this channel.

During January, 1925, less than six months after the completion of the work by claimant at New Inlet, respondents ascertained that the said inlet was again gradually closing by the filling in of the channel constructed by the Calkins Dredging Company, Inc. This was caused by the action of the winds and water upon the sands which compose the banks through which the channel had been cut and which form the bottom of the ocean and the sound. Thereupon, respondents conferred with the president of the Calkins Dredging Company as to the conditions which had thus developed. As a result of the conference, an agreement in writing was entered into, at Morehead City, on January 13, 1925, between the Calkins Dredging Company, Inc., and respondents. This agreement is as follows:

"This agreement made and entered into this the 13th day of January, 1925, by and between the Calkins Dredging Company of Norfolk, Virginia, party of the first part, and the North Carolina fisheries commission board, parties of the second part, witnesseth:

(1) The Calkins Dredging Company have this day agreed to furnish their complete dredging outfit, the 'Federal,' which is now in first-class condition, and do certain dredging work at New Inlet under the direction of the fisheries commissioner and Brent S. Drane, engineer for the commission, said dredging outfit to be assembled in Norfolk and ready to be towed to New Inlet by January 20th, or very soon thereafter; the amount of work to be done to be determined by the commissioner and engineer.

(2) The parties of the second part agreed to pay a towing charge from Norfolk to New Inlet of $550.00, and in event the parties of the first part fail to secure a job of work at Wilmington, the parties of the second part agree to pay an additional towing charge of $550 from New Inlet to Norfolk.

(3) The parties of the second part agree to pay to the parties of the first part a per diem of $450 for such time as dredge is actually employed in doing excavation work.

(4) In event it is found necessary to do any dredging in order to get around the bend between the bulkhead and New Inlet, the parties of the second part agree to pay for such dredging at a per diem of $450.

(5) In event of major breakdowns making machine shop work necessary, the parties of the second part will not be held liable for loss of time exceeding four days at the rate of $125 per day.

(6) The parties of the second part agree to furnish fresh water to the edge of the cut and to furnish the services of the 'Katie M' for towing the dredge in and out of the channel. Also to furnish one power boat ('Crotan' or 'Katie M') to be used as a supply boat.

(7) It is distinctly understood and agreed that the time for towing, installation and removal of plant shall not, in any event, exceed twenty days at a per diem of $335.00.

(8) It is understood and agreed that the parties of the second part are to render all assistance possible in getting the outfit on and off the job. Calkins Dredging Company, by [Signed] J. D. Calkins, President. North Carolina Fisheries Commission Board, by [Signed] J. K. Dixon, Chairman; J. S. Nelson, Commissioner."

On January 26, 1925, thirteen days after the date of the agreement, the Calkins Dredging Company began towing its dredging outfit from Norfolk, Va., to New Inlet in Dare county, N.C. The towing was delayed, at North River, for several days, by a heavy storm, and the outfit did not arrive at the bulkhead or bar off New Inlet until January 31, 1925. Five days had thus been consumed in towing the dredging outfit from Norfolk to the bulkhead or bar off New Inlet. But for the storm which delayed the towing several days after the dredging outfit left Norfolk, it would have arrived earlier. When the outfit arrived at the bulkhead, it was ascertained that the channel in New Inlet was entirely closed, so that automobiles were being driven across the sand which had filled the channel. It was impossible, by reason of this condition, to float the dredge across the bulkhead or bar, without grounding same. Representatives of both claimant and respondents were present when the dredging outfit arrived at the bulkhead, and this condition was discovered. In the effort to get the dredging outfit across the bulkhead to the place where it was to be installed and the work begun, under the agreement dated January 13, 1925, it was grounded; thirteen days were consumed in getting the outfit from the bulkhead or bar to the place where it was installed and where the operation began. The Calkins Dredging Company began the work of excavation and dredging on February 13, 1925, one month after the date of the agreement, and continued said work until March 12, 1925.

On March 12, 1925, after an inspection of the work performed by claimant,...