B-153707, MAR. 29, 1966

B-153707, MAR. 29, 1966

TO. MR. HADLEY B. STAHL:

YOUR LETTER OF JANUARY 8, 1966, ACKNOWLEDGED JANUARY 24, IN EFFECT REQUESTS RECONSIDERATION OF OUR SETTLEMENT CERTIFICATE DATED DECEMBER 3, 1965, CLAIM NO. Z-2304718, DISALLOWING YOUR CLAIM FOR $759 AS COMPENSATION FOR A REDUCED 1963-64 CROP OF WINTER WHEAT ON A 25 ACRE FIELD, ALLEGEDLY DUE TO DELAY ON THE PART OF A GOVERNMENT CONTRACTOR IN THE PREPARATION AND CLOSING OF A CABLE LINE TRENCH ACROSS SAID FIELD. YOU ALSO INQUIRE CONCERNING A CLAIM FOR DAMAGES IN 1962 TO A CORN CROP ON A 130 ACRE FIELD, ALSO ALLEGEDLY CAUSED BY THE CABLE LINE TRENCH.

THERE IS NO RECORD IN OUR OFFICE OF ANY CLAIM FROM YOU FOR DAMAGES TO A CORN CROP ON A 130 ACRE FIELD IN 1962. SINCE THAT CLAIM APPARENTLY AROSE FROM THE SAME CABLE LINE TRENCH INVOLVED IN THE $759 CLAIM FOR DAMAGES, WE SUGGEST THAT YOU CONTACT THE UNITED STATES ARMY ENGINEER DISTRICT, KANSAS CITY, MISSOURI, 64106, IN REGARD THERETO, INASMUCH AS THAT DISTRICT APPEARS TO HAVE HANDLED THE INSTALLATION OF SAID CABLE LINE.

WITH REGARD TO YOUR CLAIM FOR DAMAGES TO THE WINTER WHEAT CROP, THE RECORD BEFORE OUR OFFICE DISCLOSES THAT YOUR CLAIM IS BASED UPON THE ALLEGATION THAT THE CONTRACTOR LAYING THE CABLE FOR THE GOVERNMENT OPENED THE TRENCH THROUGH THE FIELD IN QUESTION ABOUT THE MIDDLE OF JUNE 1963, AND DID NOT CLOSE IT UNTIL ABOUT SEPTEMBER 1, 1963; THAT THIS DELAYED YOU IN PREPARING YOUR GROUND AND HENCE YOUR WHEAT CROP WAS NOT PLANTED UNTIL ABOUT DECEMBER 15, 1963; AND THAT AS A RESULT THEREOF YOUR YIELD WAS REDUCED 22 BUSHELS PER ACRE ON THE 25 ACRE FIELD, OR 550 BUSHELS AT $1.38 PER BUSHEL, TOTALING A LOSS OF $759.

INFORMATION FURNISHED BY THE OFFICE OF THE CHIEF OF ENGINEERS, DEPARTMENT OF THE ARMY, APPEARS TO SUPPORT THE DATE OF OPENING AND CLOSING OF THE TRENCH. HOWEVER, THE RECORD FURNISHED TO OUR OFFICE BY THE ARMY ENGINEERS INDICATES THAT THE TRENCH WAS CONSTRUCTED DIAGONALLY ACROSS YOUR 25 ACRE FIELD, SEPARATING IT INTO TWO PORTIONS, ONE OF 19 ACRES AND THE OTHER OF 6 ACRES. ACCESS TO THE 6 ACRE PORTION WAS APPARENTLY CUT OFF BY THE TRENCH, BUT THE OFFICE OF THE CHIEF OF ENGINEERS REPORTS THAT THE 19 ACRE PORTION WAS READILY ACCESSIBLE AT ALL TIMES FROM A COUNTY GRAVEL ROAD RUNNING ALONGSIDE AND COULD HAVE BEEN PREPARED AND SEEDED AT ANY/TIME. FURTHERMORE, A LETTER DATED OCTOBER 15, 1965, FROM THE OFFICE OF THE CHIEF OF ENGINEERS STATES THAT CROSSINGS OVER THE TRENCH TO ALLOW ACCESS TO THE 6 ACRE PORTION WERE IN PLACE BY AUGUST 2, 1963, AND THAT THE TRENCH WAS CLOSED ABOUT SEPTEMBER 1, 1963.

IT IS DOUBTLESS TRUE THAT LATE PLANTING OF A WINTER WHEAT CROP WILL CAUSE REDUCTION IN THE YIELD. HOWEVER, THE RECORD DOES NOT SUPPORT YOUR ALLEGATION THAT RESPONSIBILITY FOR THE ENTIRE LOSS RESTS ON THE GOVERNMENT. THE ADMINISTRATIVE REPORT INDICATES THAT THE OPEN TRENCH DID NOT PREVENT YOU FROM PREPARING AND SEEDING THE 19 ACRE PORTION OF THE FIELD WHENEVER YOU DESIRED TO DO SO. HENCE, FAILURE TO PREPARE AND SEED THIS PORTION AT THE PROPER TIME CANNOT BE ATTRIBUTED TO THE GOVERNMENT. THE ADMINISTRATIVE OFFICE REPORTS THAT ACCESS TO THE 6 ACRE PORTION WAS AVAILABLE BY AUGUST 2, 1963. FAILURE TO START WORK IN THAT PORTION IMMEDIATELY AFTER THAT DATE CANNOT BE ATTRIBUTED TO THE GOVERNMENT. ALSO, THE ADMINISTRATIVE OFFICE REPORTS THAT YOU COULD HAVE BRIDGED THE TRENCH YOURSELF AT ANY TIME AND THUS HAVE BEEN ABLE TO PREPARE AND SEED EVEN THIS 6 ACRE PORTION AT THE PROPER TIME, IF YOU SO DESIRED. MOREOVER, IT SEEMS APPARENT THAT REDUCTION OF A CROP YIELD MAY BE CAUSED BY MANY FACTORS OTHER THAN OR IN ADDITION TO LATE PLANTING.

YOUR LETTER OF JANUARY 8, 1966, STATES THAT THE PORTION OF THE FIELD ACTUALLY CUT OFF BY THE TRENCH WAS LARGER THAN THE 6 ACRES MENTIONED IN THE RECORD, ALTHOUGH YOU DO NOT STATE ITS SIZE. ALSO,YOU DENY THAT CROSSINGS OVER THE TRENCH WERE PLACED IN AUGUST OR AT ANY OTHER TIME PRIOR TO CLOSING OF THE TRENCH. YOU FURTHER STATE THAT YOU COULD NOT FARM THE 19 ACRE PORTION WITHOUT LEAVING A DEAD FURROW WHICH COULD CAUSE A WASH OR LOW PLACE IN THE FIELD AND WOULD DAMAGE THE LAND.

THE WELL-ESTABLISHED AND LONG-FOLLOWED RULE OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT IS THAT, IN THE EVENT OF A DISAGREEMENT BETWEEN THE FACTS AS STATED BY A CLAIMANT AND THOSE REPORTED BY THE ADMINISTRATIVE OFFICE CONCERNED, THE ADMINISTRATIVE REPORT MUST BE ACCEPTED AS CONTROLLING IN THE ABSENCE OF EVIDENCE SUFFICIENT TO OVERCOME THE PRESUMPTION OF THE CORRECTNESS OF OFFICIAL RECORDS AND DETERMINATIONS. OUR OFFICE IS NOT IN A POSITION TO DETERMINE WHETHER THE DAMAGES COMPLAINED OF WERE SUSTAINED, AND IF THEY WERE, THE EXTENT TO WHICH SUCH DAMAGES ARE ATTRIBUTABLE TO THE GOVERNMENT. TO DO SO WOULD REQUIRE THE TAKING OF TESTIMONY, THE CROSS- EXAMINATION OF WITNESSES, AND THE WEIGHING OF CONFLICTING EVIDENCE. HAVE NO FACILITIES FOR CONDUCTING SUCH PROCEEDINGS, AS DO THE COURTS.

THE AMOUNT OF DAMAGES INCURRED BY YOU THROUGH NO FAULT OF YOUR OWN AND ATTRIBUTABLE TO THE GOVERNMENT CONTRACTOR'S DELAY IN CLOSING THE TRENCH HAS NOT BEEN CLEARLY ESTABLISHED, AND THERE IS REASONABLE DOUBT THAT THE GOVERNMENT MAY BE HELD LIABLE IN ANY AMOUNT UNDER THE FACTS AND CIRCUMSTANCES HERE PRESENT. IN CASES OF DOUBTFUL VALIDITY, IT IS WELL ESTABLISHED THAT THE ACCOUNTING OFFICERS OF THE GOVERNMENT ARE NOT REQUIRED OR AUTHORIZED TO CERTIFY SUCH CLAIMS FOR PAYMENT, THUS LEAVING THE CLAIMANT TO HIS REMEDY, IF ANY, AT LAW. SEE LONGWILL V. UNITED STATES, 17 CT.CL. 288, 291, AND CHARLES V. UNITED STATES, 19 CT.CL. 316,319.

IN VIEW OF THE ABOVE, WE HAVE NO ALTERNATIVE BUT TO SUSTAIN THE SETTLEMENT OF DECEMBER 3, 1965, DISALLOWING YOUR CLAIM.