A-10363, AUGUST 18, 1925, 5 COMP. GEN. 126

A-10363: Aug 18, 1925

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LEASES - DAMAGES TO PRIVATE PROPERTY LEASED TO THE UNITED STATES WHERE LAND IS LEASED TO THE UNITED STATES FOR HOSPITAL PURPOSES AND THERE IS NO COVENANT IN THE LEASE AGREEMENT FOR THE PAYMENT OF DAMAGES. OR TO RESTORE THE LAND TO THE CONDITION IT WAS IN AT THE TIME THE GOVERNMENT TOOK POSSESSION. THERE IS NO LEGAL OBLIGATION ON THE UNITED STATES. TO PAY FOR ANY ALLEGED DAMAGES TO THE LAND IN THE ABSENCE OF EVIDENCE SHOWING THAT SUCH DAMAGES RESULTED FROM CAUSES OTHER THAN A REASONABLE USE OF THE LAND FOR THE PURPOSES FOR WHICH IT WAS LEASED. 107.50 THE LAND WAS ACQUIRED BY THE GOVERNMENT AT A YEARLY RENTAL OF $1 UNDER A LEASE AGREEMENT ENTERED INTO DECEMBER 10. RECITING THAT THE PROPERTY IS DESIGNATED ON THE TAX MAP OF THE BOROUGH OF RICHMOND.

A-10363, AUGUST 18, 1925, 5 COMP. GEN. 126

LEASES - DAMAGES TO PRIVATE PROPERTY LEASED TO THE UNITED STATES WHERE LAND IS LEASED TO THE UNITED STATES FOR HOSPITAL PURPOSES AND THERE IS NO COVENANT IN THE LEASE AGREEMENT FOR THE PAYMENT OF DAMAGES, OR TO RESTORE THE LAND TO THE CONDITION IT WAS IN AT THE TIME THE GOVERNMENT TOOK POSSESSION, THERE IS NO LEGAL OBLIGATION ON THE UNITED STATES, AT THE TERMINATION OF THE LEASE AGREEMENT, TO PAY FOR ANY ALLEGED DAMAGES TO THE LAND IN THE ABSENCE OF EVIDENCE SHOWING THAT SUCH DAMAGES RESULTED FROM CAUSES OTHER THAN A REASONABLE USE OF THE LAND FOR THE PURPOSES FOR WHICH IT WAS LEASED.

DECISION BY COMPTROLLER GENERAL MCCARL, AUGUST 18, 1925:

BETHLEHEM ORPHAN AND HALF ORPHAN ASYLUM APPLIED JUNE 4, 1925, FOR REVIEW OF SETTLEMENT NO. 031422, DATED JUNE 7, 1924, DISALLOWING ITS CLAIM FOR ALLEGED DAMAGES TO CERTAIN LAND AT FOX HILLS, STATEN ISLAND, N.Y., OCCUPIED BY THE GOVERNMENT FOR HOSPITAL PURPOSES, ESTIMATED AND ITEMIZED BY THE CLAIMANT AS FOLLOWS:

TABLE ITEM 1. FILLING IN EXCAVATION, DITCHES, REGRADING -------- $2,012.50 ITEM 2. REMOVING DEBRIS, CONCRETE, PLASTER, TAR PAPER,

LUMBER, ETC -------------------------------------------- 1,725.00 ITEM 3. REMOVAL OF CINDER ROADS, PATHS, ETC -------------- 2,070.00 ITEM 4. DESTRUCTION OF 19 FULL-GROWN TREES, OAK, ELM,

CHERRY, CUT DOWN, AT $100 EACH ------------------------- 1,900.00 ITEM 5. REPLACING TOP SOIL, 500 YARDS AT $2.30 PER

CUBIC YARD --------------------------------------------- 1,150.00 ITEM 6. COST NECESSARY RESURVEY AND PLACING OF MONUMENTS

REMOVED BY GOVERNMENT ---------------------------------- 250.00

9,107.50

THE LAND WAS ACQUIRED BY THE GOVERNMENT AT A YEARLY RENTAL OF $1 UNDER A LEASE AGREEMENT ENTERED INTO DECEMBER 10, 1917, BETWEEN THE CLAIMANT AS LESSOR AND COL. J. L. KNOWLTON, QUARTERMASTER CORPS, UNITED STATES ARMY, FOR AND IN BEHALF OF THE UNITED STATES AS LESSEE, RECITING THAT THE PROPERTY IS DESIGNATED ON THE TAX MAP OF THE BOROUGH OF RICHMOND, CITY OF NEW YORK, AS WARD 4, VOLUME 2, PLOT 6, LOT 1, AND STIPULATING (ARTICLE 1) THAT THE PROPERTY WAS TO BE USED FOR THE PURPOSE OF CONSTRUCTING "A CLEARING HOSPITAL THEREON; " THAT (ARTICLE 3) ALL BUILDINGS AND OTHER IMPROVEMENTS FIXED TO OR ERECTED OR PLACED IN OR UPON THE SAID PREMISES BY THE LESSEE SHOULD BE AND REMAIN THE EXCLUSIVE PROPERTY OF THE UNITED STATES, PROVIDED THE SAME, UNLESS OTHERWISE DISPOSED OF, SHOULD BE REMOVED BY THE LESSEE WITHIN 30 DAYS AFTER THE PREMISES WERE VACATED UNDER THE LEASE; AND (ARTICLE 9) THAT THE LEASE, WITH ALL ITS COVENANTS AND AGREEMENTS, MIGHT BE RENEWED YEARLY SO AS TO GIVE THE LESSEE CONTINUOUS POSSESSION OF THE PREMISES UNTIL JUNE 30, 1922, BUT NO RENEWAL TO INCLUDE MORE THAN ONE FISCAL YEAR.

THE LAND THUS ACQUIRED COMPRISED, WITH OTHER LANDS ACQUIRED UNDER LEASE AGREEMENTS, WHAT WAS KNOWN AS THE FOX HILLS HOSPITAL PROJECT.

PURSUANT TO THE PROVISIONS OF THE ACT OF MARCH 3, 1919, 40 STAT. 1302, THESE LANDS THUS ACQUIRED, WITH THE GENERAL HOSPITAL, WERE TRANSFERRED FROM THE WAR DEPARTMENT TO THE TREASURY DEPARTMENT FOR USE BY THE UNITED STATES PUBLIC HEALTH SERVICE FOR HOSPITAL OR SANATORIA PURPOSES. VIRTUE OF EXECUTIVE ORDER OF APRIL 29, 1922, THE PROPERTY CAME UNDER THE SUPERVISION, MANAGEMENT, AND CONTROL OF THE UNITED STATES VETERANS' BUREAU ON MAY 1, 1922. THE CONTROL, HOWEVER, OF THE PROPERTY FOR HOSPITAL PURPOSES CEASED PRIOR TO THE LAST MENTIONED DATE, AND ON MAY 26 AND 27 THE BUILDINGS AND IMPROVEMENTS WERE SOLD AT PUBLIC AUCTION, THE PUBLISHED TERMS OF SALE PROVIDING, IN PART:

7. ALL BUILDINGS, STRUCTURES, IMPROVEMENTS, FIXTURES, UTILITIES, AND OTHER SIMILAR PROPERTY SOLD, UNLESS PURCHASED BY THE OWNERS OF THE LAND UPON WHICH LOCATED, SHALL BE REMOVED FROM THE PREMISES BY THE PURCHASERS THEREOF BEFORE JULY 30TH, 1922. PURCHASERS SHALL WRECK, DISMANTLE, AND REMOVE THE PROPERTY PURCHASED AND SHALL CONDUCT THEIR SALVAGE OPERATIONS IN A CAREFUL AND WORKMANLIKE MANNER, WITH DUE AND PROPER REGARD TO THE PROPERTY AND OPERATIONS OF OTHER PURCHASERS AND IN SUCH MANNER AS NOT TO INTERFERE WITH THE OPERATIONS OF SUCH OTHER PURCHASERS OR WITH THE CONTROL AND OCCUPATION BY THE GOVERNMENT OF ANY BUILDINGS, STRUCTURES, IMPROVEMENTS, OR OTHER PROPERTY NOT INCLUDED IN THIS SALE. PURCHASERS SHALL ALSO BE REQUIRED TO THOROUGHLY CLEAN AND CLEAR UP THE GROUND AREA COVERED BY THEIR PURCHASE, AND WITH THE EXCEPTION OF CONCRETE AND MASONRY, SHALL REMOVE ALL FOUNDATIONS, PIERS, POSTS, AND FLOORS, AND SHALL FILL IN AND LEVEL OFF THE EXCAVATIONS RESULTING FROM SUCH REMOVALS. ALL DEBRIS AND RUBBISH RESULTING FROM SUCH OPERATIONS SHALL BE DISPOSED OF TO THE SATISFACTION OF THE REPRESENTATIVE OF THE U.S. VETERANS BUREAU AND THE COMMANDING OFFICER.

THE SALE WAS CONDUCTED BY CHARLES S. GERTH, DOING BUSINESS UNDER THE NAME OF GERTH REALTY EXPERTS, NEW YORK CITY, UNDER A CONTRACT BY WHICH HE UNDERTOOK TO SEE THAT THE TERMS OF SALE, SUBSTANTIALLY AS HEREINBEFORE QUOTED, WERE COMPLIED WITH AND BY WHICH HE ASSUMED THE OBLIGATION IN THE EVENT OF ANY FAILURE UPON THE PART OF ANY PURCHASER OR PURCHASERS.

THE DIRECTOR OF THE UNITED STATES VETERANS' BUREAU REPORTED OCTOBER 7, 1924, THAT UNDER DATE OF AUGUST 23, 1922, GERTH ADVISED THE BUREAU THAT THE SITUATION AT FOX HILLS HAD BEEN CHECKED OVER CAREFULLY AND IT WAS FOUND THAT THE PURCHASERS OF BUILDINGS NOT REMOVED WITHIN THE TIME LIMIT SET BY THE TERMS OF SALE HAD MADE ARRANGEMENTS WITH THE OWNERS OF THE PARTICULAR PROPERTY UPON WHICH THE BUILDINGS STOOD TO PAY THEM A FIXED RENTAL FOR THE PRIVILEGE OF LEAVING THEM THERE UNTIL SUCH TIME AS THEY MIGHT BE WRECKED. THE DIRECTOR FURTHER REPORTED THAT THE BUREAU CONFIRMED THIS STATEMENT AND THAT THE FILES OF THE BUREAU INDICATED THAT MR. GERTH HAD FULLY COMPLIED WITH THE TERMS OF THE AGREEMENT IN ALL PARTICULARS.

THE BASIS OF THE CLAIM FOR DAMAGES IS MUCH THE SAME AS WAS CONSIDERED IN DECISION OF DECEMBER 6, 1924, A-3259, UPON THE CLAIM OF OWNERS OF OTHER LEASED LANDS INCLUDED IN THE FOX HILLS HOSPITAL PROJECT, AND WHAT WAS STATED THEREIN IS APPLICABLE ALSO IN THE INSTANT CASE.

THE ORIGINAL LEASE AGREEMENT UNDER WHICH THE UNITED STATES ACQUIRED THE LAND CONTEMPLATED THAT THE HOSPITAL BUILDINGS AND OTHER IMPROVEMENTS WOULD BE ERECTED THEREON. THERE WAS NO COVENANT TO RESTORE THE LAND TO THE CONDITION IT WAS IN AT THE TIME THE UNITED STATES TOOK POSSESSION UNDER THE LEASE AGREEMENT. ONLY SUCH BUILDINGS OR IMPROVEMENTS WERE CONSTRUCTED ON OR CHANGES MADE IN THE LAND AS WERE CONTEMPLATED BY THE PARTIES OR AS REASONABLY COULD BE EXPECTED AS INCIDENT TO THE USE OF THE LAND FOR THE PURPOSE FOR WHICH LEASED. THE ONLY PROVISION IN THE LEASE RELATIVE TO REMOVAL OF IMPROVEMENTS IS IN CONNECTION WITH THE RESERVATION OF PROPERTY THEREIN TO THE GOVERNMENT; THAT IS TO SAY, THE REMOVAL OF SAID IMPROVEMENTS WITHIN 30 DAYS AFTER THE LANDS WERE VACATED UNDER THE LEASE WAS MADE A CONDITION OF THE GOVERNMENT'S RIGHT TO RETAIN THE PROPERTY THEREIN. WHILE ANY FAILURE TO RESERVE WITHIN THE SPECIFIED TIME WITHOUT OBTAINING AN EXTENSION FROM THE OWNER MIGHT HAVE JUSTIFIED THE LESSOR IN ASSERTING TITLE TO SAID IMPROVEMENTS AND IN REFUSING TO PERMIT THEIR REMOVAL, IF PROPER ACTION TO THAT END HAD BEEN TAKEN, SUCH FAILURE COULD NOT, UNDER THE TERMS OF THE LEASE OR OTHERWISE, OBLIGATE THE GOVERNMENT TO PAY DAMAGES. THERE IS NO PROVISION IN THE LEASE WHICH COULD BE CONSTRUED TO IMPOSE UPON THE GOVERNMENT THE DUTY OR OBLIGATION OF COMPENSATING THE LESSOR FOR THE DAMAGES ALLEGED TO HAVE BEEN SUSTAINED IN THIS CASE. THE ALLEGED DAMAGES TO THE LAND ARE ONLY SUCH AS MIGHT BE PRESUMED TO RESULT FROM ITS REASONABLE USE FOR THE PURPOSE FOR WHICH LEASED.

IN VIEW OF THE FACTS HEREINBEFORE STATED AND THE LAW APPLICABLE THERETO, IT MUST BE HELD THAT THERE IS NO LEGAL OBLIGATION ON THE UNITED STATES TO PAY THE DAMAGES CLAIMED.