B-148823, MAY 17, 1962
Highlights
REQUESTING AN ADVANCE DECISION WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER IN THE AMOUNT OF $5. A RIGHT-OF-ENTRY FOR CONSTRUCTION WAS OBTAINED FROM J. THE TRACTS WERE APPRAISED AT $7. WAS OBTAINED FROM MR. THE OFFER TO SELL WAS ACCEPTED BY THE GOVERNMENT ON NOVEMBER 6. WHEN THE CONSTRUCTION CONTRACTOR WAS NOTIFIED TO PROCEED. INFORMATION WAS RECEIVED THAT APPROXIMATELY 61 ACRES OF THE TRACT CAVED INTO THE ARKANSAS RIVER AND WHILE IT IS NOT KNOWN WHEN THE CAVE IN OCCURRED MR. EXPRESSED THE VIEW THAT IT COULD HAVE HAPPENED ANY TIME FROM THE TIME THE ORIGINAL SURVEY WAS MADE IN OCTOBER 1961. WHEN A NEW SURVEY WAS MADE. CONTENDS THAT THE LAND WAS WASHED AWAY AFTER DECEMBER 26. THAT IT WOULD NOT HAVE OCCURRED IF THE CONTRACTOR HAD STARTED WORK TIMELY.
B-148823, MAY 17, 1962
TO DISBURSING OFFICER, U.S. ARMY ENGINEER DISTRICT, LITTLE ROCK, ARKANSAS:
YOUR LETTER OF APRIL 4, 1962 (SWLFE), REQUESTING AN ADVANCE DECISION WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER IN THE AMOUNT OF $5,700 IN FAVOR OF J. B. HARWOOD AND THENA HARWOOD FOR AN EASEMENT TO CONSTRUCT AND MAINTAIN CHANNEL IMPROVEMENT WORKS OVER 142 ACRES MORE OR LESS, DESIGNATED AS TRACTS 110E-1 AND E-2, AND TEMPORARY ROAD RIGHT OF-WAY EASEMENT OVER 2.18 ACRES, MORE OR LESS, DESIGNATED AS TRACT 110E-3,SHOOFLY BEND CUTOFF, ARKANSAS RIVER, HAS BEEN REFERRED HERE BY 1ST INDORSEMENT, DATED APRIL 25, 1962 (ENGEC-FA) (4 APR 62),FROM THE OFFICE OF THE CHIEF OF ENGINEERS.
THE RECORD SHOWS THAT ON OCTOBER 6, 1961, A RIGHT-OF-ENTRY FOR CONSTRUCTION WAS OBTAINED FROM J. B. HARWOOD AND WIFE, THENA, FOR A PERIOD OF SIX MONTHS ON TRACTS NOS. 110E-1, E-2, AND E-3; THAT ON OCTOBER 12, 1961, THE TRACTS WERE APPRAISED AT $7,125 ($6,900 FOR PERPETUAL EASEMENT AND $225 FOR TEMPORARY EASEMENT); AND THAT ON NOVEMBER 3, 1961, AN OFFER TO SELL EASEMENT ON TRACTS NOS. 110E-1, E 2, AND E-3, WAS OBTAINED FROM MR. AND MRS. HARWOOD FOR $5,700. THE OFFER TO SELL WAS ACCEPTED BY THE GOVERNMENT ON NOVEMBER 6, 1961, AND ON OR ABOUT DECEMBER 26, 1961, THE GOVERNMENT EXERCISED ITS RIGHT TO IMMEDIATE OCCUPANCY, WHEN THE CONSTRUCTION CONTRACTOR WAS NOTIFIED TO PROCEED. THE RECORD SHOWS, HOWEVER, THAT THE CONTRACTOR DID NOT "OFFICIALLY" START WORK UNTIL JANUARY 7, 1962.
THE RECORD FURTHER SHOWS THAT ON OR ABOUT JANUARY 15, 1962, INFORMATION WAS RECEIVED THAT APPROXIMATELY 61 ACRES OF THE TRACT CAVED INTO THE ARKANSAS RIVER AND WHILE IT IS NOT KNOWN WHEN THE CAVE IN OCCURRED MR. SHELTON, ARKANSAS RIVER BRANCH, ENGINEERING DIVISION, EXPRESSED THE VIEW THAT IT COULD HAVE HAPPENED ANY TIME FROM THE TIME THE ORIGINAL SURVEY WAS MADE IN OCTOBER 1961, TO APPROXIMATELY JANUARY 15, 1962, WHEN A NEW SURVEY WAS MADE. MR. HARWOOD, HOWEVER, CONTENDS THAT THE LAND WAS WASHED AWAY AFTER DECEMBER 26, 1961, AND THAT IT WOULD NOT HAVE OCCURRED IF THE CONTRACTOR HAD STARTED WORK TIMELY.
THE GENERAL RULE IS THAT A CONTRACT TO SELL REAL PROPERTY OR INTERESTS THEREIN VESTS EQUITABLE OWNERSHIP OF THE PROPERTY IN THE PURCHASER, WITH THE COROLLARY THAT ANY LOSS OR DESTRUCTION OF THE PROPERTY THROUGH CASUALTY DURING THE PENDENCY OF THE CONTRACT MUST BE BORNE BY THE PURCHASER. 36 COMP. GEN. 90 AND 37 ID. 700. AS INDICATED IN YOUR LETTER, HOWEVER, IN THE PRESENT CASE IT IS NOT ESTABLISHED WHEN THE CAVE-IN OCCURRED. ACCORDINGLY, AND SINCE THERE IS NO SHOWING OF COMPLIANCE WITH THE APPROVAL OF TITLE REQUIREMENTS OF 355, REVISED STATUTES, AS AMENDED 40 U.S.C. 255, AND PARAGRAPH 14-H (1), ARMY REGULATIONS 405-10, JUNE 10, 1957, PAYMENT OF THE VOUCHER, RETURNED HEREWITH TOGETHER WITH SUPPORTING PAPERS, IS NOT AUTHORIZED ON THE PRESENT RECORD.