A-16703, JANUARY 4, 1927, 6 COMP. GEN. 437

A-16703: Jan 4, 1927

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IS AUTHORIZED UNDER SECTION 5 OF THE ACT OF MARCH 3. AS FOLLOWS: I SHOULD BE GLAD TO HAVE YOUR DECISION AS TO THE PERMISSIBILITY OF PURCHASING A WAY OVER PRIVATE LAND IN CONNECTION WITH THE UTILIZATION OF WATER FROM A SPRING ALSO LOCATED ON PRIVATE LAND. THE CIRCUMSTANCES ARE AS FOLLOWS: THE PRESENT AND ONLY AVAILABLE SOURCE OF WATER SUPPLY FOR THE MOUNTAIN RANCH RANGER STATION IN T. 22 S. IS A SPRING LOCATED ON PRIVATE LAND IN THE SW. 1/4 OF SECTION 10. HE IS NOW ENDEAVORING TO SELL THE QUARTER SECTION TO A PROSPECTIVE PURCHASER WHOSE WILLINGNESS TO PERMIT CONTINUED USE OF THE SPRING IS VERY DOUBTFUL. THE SUPERVISOR IS DELAYING THE TRANSACTION TEMPORARILY TO AFFORD THE GOVERNMENT AN OPPORTUNITY TO ARRANGE FOR THE CONTINUED ENJOYMENT OF THE USE OF THE SPRING WHICH WOULD INVOLVE ACQUIRING A RIGHT TO USE A STRIP OF LAND 4 FEET WIDE AND 5.48 CHAINS LONG AND A CIRCULAR TRACT 10 FEETIN DIAMETER SURROUNDING AND INCLUDING THE SPRING.

A-16703, JANUARY 4, 1927, 6 COMP. GEN. 437

PURCHASES - REAL ESTATE - RIGHT OF WAY WHERE THE WATER SUPPLY OF A RANGER STATION SITUATED ON GOVERNMENT LAND MUST NECESSARILY BE PROCURED FROM A SPRING ON ADJOINING PRIVATE PROPERTY, THE PURCHASE, IN FEE, OF A STRIP OF LAND LEADING TO AND SURROUNDING SUCH SPRING, OR THE PURCHASE OF A RIGHT OF WAY OVER THE LAND, INCLUDING THE RIGHT TO APPROPRIATE AND USE THE WATERS OF THE SPRING, IS AUTHORIZED UNDER SECTION 5 OF THE ACT OF MARCH 3, 1925, 43 STAT. 1133, IF CONSIDERED NECESSARY TO RENDER THE SITE SUITABLE FOR SUCH STATION.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF AGRICULTURE, JANUARY 4, 1927:

THERE HAS BEEN RECEIVED YOUR LETTER OF DECEMBER 14, 1926, AS FOLLOWS:

I SHOULD BE GLAD TO HAVE YOUR DECISION AS TO THE PERMISSIBILITY OF PURCHASING A WAY OVER PRIVATE LAND IN CONNECTION WITH THE UTILIZATION OF WATER FROM A SPRING ALSO LOCATED ON PRIVATE LAND, THE WATER BEING REQUIRED FOR ADMINISTRATIVE PURPOSES AT A GOVERNMENT RANGER STATION. THE CIRCUMSTANCES ARE AS FOLLOWS:

THE PRESENT AND ONLY AVAILABLE SOURCE OF WATER SUPPLY FOR THE MOUNTAIN RANCH RANGER STATION IN T. 22 S., R. 3 E., S.L.M. UTAH, IS A SPRING LOCATED ON PRIVATE LAND IN THE SW. 1/4 OF SECTION 10, SAME TOWNSHIP AND RANGE, AND OWNED BY A FOREST SUPERVISOR IN THE EMPLOY OF THE FOREST SERVICE. WHILE THE SUPERVISOR HAS ALWAYS PERMITTED THE USE OF WATER FROM THE SPRINGS FOR THE NEEDS OF THE RANGER STATION, HE IS NOW ENDEAVORING TO SELL THE QUARTER SECTION TO A PROSPECTIVE PURCHASER WHOSE WILLINGNESS TO PERMIT CONTINUED USE OF THE SPRING IS VERY DOUBTFUL. THE SUPERVISOR IS DELAYING THE TRANSACTION TEMPORARILY TO AFFORD THE GOVERNMENT AN OPPORTUNITY TO ARRANGE FOR THE CONTINUED ENJOYMENT OF THE USE OF THE SPRING WHICH WOULD INVOLVE ACQUIRING A RIGHT TO USE A STRIP OF LAND 4 FEET WIDE AND 5.48 CHAINS LONG AND A CIRCULAR TRACT 10 FEETIN DIAMETER SURROUNDING AND INCLUDING THE SPRING, WHICH ARRANGEMENT WOULD PROVIDE A CONTINUED WATER SUPPLY FOR THE STATION.

SEC. 5 OF THE ACT OF MARCH 3, 1925, 43 STAT. 1133, READS AS FOLLOWS:

"THAT WHERE NO SUITABLE GOVERNMENT LAND IS AVAILABLE FOR NATIONAL FOREST HEADQUARTERS OR RANGER STATIONS, THE SECRETARY OF AGRICULTURE IS HEREBY AUTHORIZED TO PURCHASE SUCH LANDS OUT OF ANY FUNDS APPROPRIATED FOR BUILDING IMPROVEMENTS ON THE NATIONAL FOREST, BUT NOT MORE THAN $2,500 SHALL BE SO EXPENDED IN ANY ONE YEAR.'

SINCE AN AVAILABLE WATER SUPPLY IS AN INDISPENSABLE PART OF A RANGER STATION SITE, IT IS SUBMITTED THAT WHERE NO SUCH SUPPLY EXISTS OR CAN BE ECONOMICALLY DEVELOPED ON AN OTHERWISE SUITABLE SITE, PURCHASE OF ADJOINING LAND CONTAINING A WATER SUPPLY IN ORDER TO COMPLETE THE SUITABILITY OF THE TRACT FOR RANGER STATION PURPOSES IS APPARENTLY AUTHORIZED BY THE ABOVE-QUOTED SECTION. TO STATE THE QUESTION DIFFERENTLY IT WOULD APPEAR THAT THE AUTHORITY IN LAW TO PURCHASE AN ENTIRE SITE SUITABLE FOR A RANGER STATION MAY BE EXERCISED IN PROCURING A PORTION OF A SITE NEEDED FOR SUCH PURPOSE IN THOSE CASES WHERE THE GOVERNMENT POSSESSES LAND SUITABLE FOR THE REMAINDER OF THE SITE. THERE IS, OF COURSE, NO QUESTION AS TO AUTHORITY TO PURCHASE UNDER THE ABOVE-QUOTED LAW A TEN OR FORTY ACRE TRACT CONTAINING THE SPRING BUT THIS WOULD INVOLVE A GREATER EXPENSE THAN SEEMS WARRANTED BOTH FOR THE LAND PURCHASE AND FOR REMOVAL OF EXISTING BUILDINGS TO THE SITE SO ACQUIRED. THE ACT PROVIDES FOR SITUATIONS "WHERE NO SUITABLE GOVERNMENT LAND IS AVAILABLE.' IN THE CASE UNDER CONSIDERATION THERE IS GOVERNMENT LAND AVAILABLE SUITABLE FOR THE PURPOSE IN LARGE DEGREE AND WHICH COULD BE MADE ENTIRELY SUITABLE BY THE PURCHASE OF A SMALL ADDITIONAL PARCEL OF LAND. HOWEVER, THE DEPARTMENT IS NOT ENTIRELY CLEAR AS TO WHETHER THE ACT PERMITS THE PURCHASE OF LAND AS A COMPLEMENT ESSENTIAL TO COMPLETE SUITABILITY OF THE SITE NOW IN POSSESSION OF THE GOVERNMENT.

FOR FURTHER CONSIDERATION IN THE EVENT TITLE TO THE LAND CAN NOT BE ACQUIRED (IT BEING POSSIBLE THAT ACQUISITION BY THE GOVERNMENT OF OWNERSHIP OF THE FOUR-FOOT STRIP MIGHT INTERFERE WITH THE SALE OF THE QUARTER SECTION) I WISH TO PRESENT THE QUESTION OF LEGALITY OF PURCHASING A RIGHT OF WAY OVER IT FROM THE PRESENT OWNER, THE PURCHASE TO BE MADE FROM THE SAME APPROPRIATION AS IN THE FIRST-MENTIONED PROPOSAL. THE APPLICABLE PORTION OF THE APPROPRIATION ACT READS:

"FOR THE CONSTRUCTION AND MAINTENANCE OF ROADS, TRAILS, BRIDGES, FIRE LANES, TELEPHONE LINES, CABINS, FENCES, AND OTHER IMPROVEMENTS NECESSARY FOR THE PROPER AND ECONOMICAL ADMINISTRATION, PROTECTION, AND DEVELOPMENT OF THE NATIONAL FORESTS, $426,900: PROVIDED, THAT WHERE, IN THE OPINION OF THE SECRETARY OF AGRICULTURE, DIRECT PURCHASE WILL BE MORE ECONOMICAL THAN CONSTRUCTION, TELEPHONE LINES, CABINS, FENCES, AND OTHER IMPROVEMENTS MAY BE PURCHASED.'

IT WOULD APPEAR THAT THE PURCHASE OF A RIGHT OF WAY UNDER THE CIRCUMSTANCES EXISTING IN THIS CASE IS AUTHORIZED BY 7 C.D. 371, DECIDING IN A SOMEWHAT ANALOGOUS CASE THAT THE PURCHASE OF A NECESSARY RIGHT OF WAY TO AND FROM A LIGHT STATION IS CLEARLY WITHIN THE MEANING OF THE TERM ,IMPROVEMENTS.'

I SHOULD APPRECIATE YOUR DECISION AS TO WHETHER EITHER OR BOTH OF THE PROPOSED ARRANGEMENTS MAY BE ENTERED INTO UNDER EXISTING LAW FOR THE ACCOMPLISHMENT OF THE PURPOSE HEREIN DEFINED.

SECTION 3736, REVISED STATUTES, PROHIBITS THE PURCHASE OF LAND EXCEPT UNDER A LAW AUTHORIZING SAID PURCHASE. IN VIEW OF THE AUTHORITY IN THE ACT OF MARCH 3, 1925, 43 STAT. 1133, FOR THE PURCHASE OF LAND FOR NATIONAL FOREST HEADQUARTERS OR FOR RANGER STATIONS, IF THE PURCHASE OF THE STRIP OF LAND LEADING TO AND SURROUNDING THE SPRING IS NECESSARY TO RENDER THE PRESENT SITE OF THE RANGER STATION ON ADJOINING GOVERNMENT-OWNED LAND SUITABLE FOR SUCH A STATION, ITS PURCHASE WOULD APPEAR TO BE AUTHORIZED UNDER SAID ACT.

SHOULD IT NOT BE POSSIBLE TO PURCHASE THE FEE TITLE TO THE STRIP IN QUESTION THE PURCHASE OF A RIGHT OF WAY OVER THE LAND TO THE SPRING, PROVIDED THE AGREEMENT ALSO INCLUDES A SPECIFIC GRANT OR AUTHORITY TO USE AND APPROPRIATE THE WATERS OF THE SPRING, WOULD APPEAR TO SERVE THE SAME PURPOSE, AND THE PURCHASE OF SUCH A RIGHT OF WAY WOULD BE AUTHORIZED EITHER AS A PURCHASE OF AN INTEREST IN LAND UNDER THE ACT OF MARCH 3, 1925, SUPRA, OR AS THE PURCHASE OF AN IMPROVEMENT FOR THE USE OF AND IN CONNECTION WITH THE RANGER STATION SITE AS PROVIDED FOR IN THE APPROPRIATION ACT QUOTED IN YOUR LETTER. 7 COMP. DEC. 371.

ANSWERING YOUR QUESTION SPECIFICALLY, YOU ARE ADVISED THAT THE PURCHASE OF THE STRIP OF LAND IN FEE, OR THE PURCHASE OF A RIGHT OF WAY, INCLUDING A RIGHT TO APPROPRIATE THE WATER IN THE SPRING, IS AUTHORIZED UNDER THE CONDITIONS PRESENTED IN YOUR SUBMISSION.