A-18900, JULY 13, 1927, 7 COMP. GEN. 31

A-18900: Jul 13, 1927

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LEASES - DAMAGES WHERE THE RAILING IN A BUILDING LEASED TO THE UNITED STATES WAS REMOVED BY THE GOVERNMENT UNDER AUTHORITY IN THE LEASE AGREEMENT TO MAKE ALTERATIONS. WAS SUBSEQUENTLY TAKEN FROM THE BUILDING AND APPROPRIATED TO THE GOVERNMENT'S USE WITHOUT THE KNOWLEDGE OR CONSENT OF THE LESSOR. THE VALUE THEREOF IS PROPERLY PAYABLE TO THE LESSOR. WHEREBY WAS DISALLOWED HIS CLAIM FOR $75. IT APPEARS THAT WHEN THE REGIONAL OFFICE FIRST OCCUPIED ROOMS IN CLAIMANT'S BUILDING THERE WAS A LONG RAILING IN ROOM NO. 8 WHICH WAS USED AS THE MAIN OFFICE. THE RECORD IS NOT CLEAR AS TO WHETHER THERE WAS ALSO A SHORTER RAILING EXTENDING AT RIGHT ANGLES TO THE LONG ONE. OR WHETHER THE SHORT RAILING WAS MADE FROM THE MATERIAL OF THE LONG ONE BY DIRECTION OF SOME PERSON IN THE VETERANS' BUREAU.

A-18900, JULY 13, 1927, 7 COMP. GEN. 31

LEASES - DAMAGES WHERE THE RAILING IN A BUILDING LEASED TO THE UNITED STATES WAS REMOVED BY THE GOVERNMENT UNDER AUTHORITY IN THE LEASE AGREEMENT TO MAKE ALTERATIONS, BUT WAS SUBSEQUENTLY TAKEN FROM THE BUILDING AND APPROPRIATED TO THE GOVERNMENT'S USE WITHOUT THE KNOWLEDGE OR CONSENT OF THE LESSOR, THE VALUE THEREOF IS PROPERLY PAYABLE TO THE LESSOR.

DECISION BY COMPTROLLER GENERAL MCCARL, JULY 13, 1927:

GEORGE H. N. LUHRS APPLIED JUNE 1, 1927, FOR REVIEW OF SETTLEMENT 0181528, DATED MAY 24, 1927, WHEREBY WAS DISALLOWED HIS CLAIM FOR $75, THE VALUE OF A RAILING REMOVED FROM A BUILDING LEASED BY HIM TO THE REGIONAL OFFICE OF THE UNITED STATES VETERANS' BUREAU, PHOENIX, ARIZ., UNDER VARIOUS LEASES COVERING THE PERIOD FROM AUGUST 7, 1922, TO JUNE 30, 1926.

IT APPEARS THAT WHEN THE REGIONAL OFFICE FIRST OCCUPIED ROOMS IN CLAIMANT'S BUILDING THERE WAS A LONG RAILING IN ROOM NO. 8 WHICH WAS USED AS THE MAIN OFFICE. THE RECORD IS NOT CLEAR AS TO WHETHER THERE WAS ALSO A SHORTER RAILING EXTENDING AT RIGHT ANGLES TO THE LONG ONE, OR WHETHER THE SHORT RAILING WAS MADE FROM THE MATERIAL OF THE LONG ONE BY DIRECTION OF SOME PERSON IN THE VETERANS' BUREAU. IN ANY EVENT IT APPEARS THAT THE LONG RAILING WAS REMOVED FROM SAID ROOM IN JANUARY, 1925, AND THE SHORTER ONE IN AUGUST OR SEPTEMBER, 1925.

DURING THE PERIOD THAT THE ROOMS WERE OCCUPIED BY THE REGIONAL OFFICE THERE HAD BEEN ONE OR MORE CHANGES OF ADMINISTRATIVE HEADS AND AS A RESULT THEREOF IT IS IMPOSSIBLE NOW TO DETERMINE AT WHOSE DIRECTION THE RAILINGS WERE REMOVED, BUT THERE SEEMS TO BE NO DOUBT THAT THE REMOVAL WAS AT THE REQUEST OR DIRECTION OF A GOVERNMENT OFFICER AND WITHOUT THE CLAIMANT'S KNOWLEDGE OR CONSENT.

IN CONNECTION WITH THE TERMINATION OF THE FIRST TWO LEASES ON FEBRUARY 29 AND JUNE 30, 1924, CLAIMANT EXECUTED RELEASES BUT SUCH RELEASES DO NOT COVER THE PERIOD IN WHICH THE RAILING WAS REMOVED.

THE LEASE OF JUNE 27, 1924, WHICH WAS RENEWED TO EXTEND IT TO JUNE 30, 1925, COVERED THE PERIOD IN WHICH THE LONG RAILING WAS REMOVED AND THE LEASE OF JUNE 19, 1925, COVERED THE PERIOD IN WHICH THE SHORT RAILING WAS REMOVED. PARAGRAPH 8 OF BOTH LEASES PROVIDES AS FOLLOWS:

THE GOVERNMENT SHALL HAVE THE RIGHT, DURING THE EXISTENCE OF THIS LEASE, TO MAKE ALTERATIONS, ATTACH FIXTURES, AND ERECT ADDITIONS, STRUCTURES, OR SIGNS, IN OR UPON THE PREMISES HEREBY LEASED (PROVIDED SUCH ALTERATIONS, ADDITIONS, STRUCTURES, OR SIGNS SHALL NOT BE DETRIMENTAL TO OR INCONSISTENT WITH THE RIGHTS GRANTED TO OTHER TENANTS ON THE PROPERTY OR IN THE BUILDING IN WHICH SAID PREMISES ARE LOCATED); WHICH FIXTURES, ADDITIONS, OR STRUCTURES SO PLACED IN OR UPON OR ATTACHED TO THE SAID PREMISES SHALL BE AND REMAIN THE PROPERTY OF THE GOVERNMENT AND MAY BE REMOVED THEREFROM BY THE GOVERNMENT PRIOR TO THE TERMINATION OF THE LEASE, AND THE GOVERNMENT, IF REQUIRED BY THE LESSOR, SHALL, BEFORE THE EXPIRATION OF THIS LEASE OR RENEWAL THEREOF, RESTORE THE PREMISES TO THE SAME CONDITION AS THAT EXISTING AT THE TIME OF ENTERING UPON THE SAME UNDER THIS LEASE, REASONABLE AND ORDINARY WEAR AND TEAR AND DAMAGES BY THE ELEMENTS, OR BY CIRCUMSTANCES OVER WHICH THE GOVERNMENT HAS NO CONTROL, EXCEPTED: PROVIDED, HOWEVER, THAT IF THE LESSOR REQUIRES SUCH RESTORATION, THE LESSOR SHALL GIVE WRITTEN NOTICE THEREOF TO THE GOVERNMENT NINETY DAYS BEFORE THE TERMINATION OF THE LEASE.

THE CLAIM WAS DISALLOWED ON THE GROUND THAT IT WAS A CLAIM FOR RESTORATION AND THEREFORE SUBJECT TO THE PROVISO IN PARAGRAPH 8 OF THE LEASE REQUIRING NOTICE IN WRITING 90 DAYS BEFORE THE TERMINATION OF THE LEASE. PARAGRAPH 8 GIVES THE GOVERNMENT THE RIGHT TO MAKE ALTERATIONS, ATTACH FIXTURES AND ERECT ADDITIONS, STRUCTURES, AND SIGNS AND TO REMOVE SUCH FIXTURES, ADDITIONS, OR STRUCTURES PRIOR TO THE TERMINATION OF THE LEASE. UNDER IT THE GOVERNMENT HAD THE RIGHT TO REMOVE THE LONG RAILING AND USE IT AT OTHER PLACES IN CLAIMANT'S BUILDING, AND SINCE NOTICE TO RESTORE WAS NOT GIVEN IN ACCORDANCE WITH THE PROVISO IN PARAGRAPH 8, THE GOVERNMENT IS NOT NOW REQUIRED TO RESTORE OR TO PAY WHAT IT WOULD COST TO RESTORE.

IT NOW APPEARS, HOWEVER, THAT WHEN THE GOVERNMENT VACATED CLAIMANT'S BUILDING AS OF JUNE 30, 1926, THE RAILINGS WERE REMOVED TO THE GOVERNMENT'S NEW QUARTERS, DOUBTLESS DUE TO A BELIEF THAT THE RAILINGS HAD BEEN INSTALLED BY AND BELONGED TO THE GOVERNMENT. THE GOVERNMENT HAD NO RIGHT TO REMOVE MATERIAL OF WHICH THE RAILINGS WERE CONSTRUCTED FROM THE CLAIMANT'S BUILDING AND APPROPRIATE SAME TO ITS OWN USE,AND SUCH REMOVAL CONSTITUTED DAMAGES FOR WHICH THE GOVERNMENT IS LIABLE UNDER THE LEASE. SEE 24 COMP. DEC. 606. BUT THE MEASURE OF SUCH DAMAGES IS NOT WHAT IT HAD COST TO INSTALL RAILINGS BUT THE VALUE OF THE RAILINGS AFTER BEING DETACHED FROM THE BUILDING.

FROM THE FACTS PRESENTED IT MAY BE ASSUMED THAT $50 WAS THE FAIR AND REASONABLE VALUE OF THE RAILINGS AFTER THEY HAD BEEN DETACHED AND AT THE TIME THE GOVERNMENT REMOVED THEM FROM CLAIMANT'S PREMISES.

ACCORDINGLY, UPON REVIEW, $50 IS CERTIFIED DUE CLAIMANT, WHICH AMOUNT WILL BE PAID WHEN CLAIMANT HAS SIGNIFIED THAT HE WILL ACCEPT SUCH AMOUNT IN FULL AND FINAL SETTLEMENT OF HIS CLAIM.