A-25328, DECEMBER 17, 1928, 8 COMP. GEN. 308

A-25328: Dec 17, 1928

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

WHICH ARE PROPERLY CLASSIFIED AS EXPENSES OF SUITS. THE COSTS OF ABSTRACTS SO PROCURED BEFORE CONDEMNATION PROCEEDINGS ARE. ARE NEEDED IN CARRYING OUT THIS PROJECT. OR RIGHT OF WAY IS LOCATED.'. WHILE THE ACT ALSO AUTHORIZES ACQUISITION BY PURCHASE AND DONATION IT IS EVIDENT FROM INVESTIGATIONS AND NEGOTIATIONS CONDUCTED BY THE DEPARTMENT THAT. IN CASES OF CONDEMNATION AS WELL AS OF PURCHASE ABSTRACTS OF TITLE ARE NECESSARY. SUCH EXPENSES ARE PAYABLE FROM APPROPRIATIONS MADE FOR THE DEPARTMENT OF (3 COMP. OWING TO THE MAGNITUDE OF THIS PROJECT AND TO THE NUMEROUS CONDEMNATION SUITS THAT MUST BE INSTITUTED IT IS MANIFEST THAT THE COST OF PREPARING THE NECESSARY ABSTRACTS OF TITLE WILL BE TOO GREAT A TAX ON THE RESOURCES OF THAT DEPARTMENT.

A-25328, DECEMBER 17, 1928, 8 COMP. GEN. 308

REAL ESTATE - ABSTRACTS OF TITLE - MISSISSIPPI FLOOD CONTROL THE NECESSARY COST OF ABSTRACTS OF TITLE REQUIRED BEFORE THE INSTITUTION OF CONDEMNATION PROCEEDINGS AS TO THE PARTICULAR TRACTS UNDER THE FLOOD CONTROL ACT OF MAY 15, 1928, 45 STAT. 534, MAY BE CONSIDERED EXPENSES OF PROSECUTING THE WORK OF FLOOD CONTROL, AS DISTINGUISHED FROM THE COSTS OF ABSTRACTS OF TITLE PROCURED AFTER THE INSTITUTION OF CONDEMNATION PROCEEDINGS FOR USE IN CONNECTION THEREWITH, WHICH ARE PROPERLY CLASSIFIED AS EXPENSES OF SUITS, AND THE COSTS OF ABSTRACTS SO PROCURED BEFORE CONDEMNATION PROCEEDINGS ARE, THEREFORE, CHARGEABLE TO THE APPROPRIATION FOR CARRYING OUT THE FLOOD CONTROL PROJECT.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF WAR, DECEMBER 17, 1928:

THERE HAS BEEN RECEIVED YOUR LETTER OF DECEMBER 3, 1928, AS FOLLOWS:

SECTION 4 OF THE FLOODWAY CONTROL ACT APPROVED MAY 15, 1928 (45 STATS. 536), PROVIDES, AMONG OTHER THINGS, THAT---

"THE SECRETARY OF WAR MAY CAUSE PROCEEDINGS TO BE INSTITUTED FOR THE ACQUIREMENT BY CONDEMNATION OF ANY LANDS, EASEMENTS, OR RIGHTS OF WAY, WHICH, IN THE OPINION OF THE SECRETARY OF WAR AND THE CHIEF OF ENGINEERS, ARE NEEDED IN CARRYING OUT THIS PROJECT, THE SAID PROCEEDINGS TO BE INSTITUTED IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT IN WHICH THE LAND, EASEMENT, OR RIGHT OF WAY IS LOCATED.'

WHILE THE ACT ALSO AUTHORIZES ACQUISITION BY PURCHASE AND DONATION IT IS EVIDENT FROM INVESTIGATIONS AND NEGOTIATIONS CONDUCTED BY THE DEPARTMENT THAT, OWING TO EXCESSIVE PRICES DEMANDED BY LANDOWNERS, THE GREATER PART OF THE LANDS AND EASEMENTS MUST BE ACQUIRED BY CONDEMNATION. IN CASES OF CONDEMNATION AS WELL AS OF PURCHASE ABSTRACTS OF TITLE ARE NECESSARY.

UNDER THE DECISIONS OF YOUR OFFICE THE COST OF ABSTRACTS OF TITLE TO BE USED IN A SUIT IN CONDEMNATION CONSTITUTES A PART OF THE EXPENSES OF THE SUIT, AND SUCH EXPENSES ARE PAYABLE FROM APPROPRIATIONS MADE FOR THE DEPARTMENT OF (3 COMP. DEC. 216.) OWING TO THE MAGNITUDE OF THIS PROJECT AND TO THE NUMEROUS CONDEMNATION SUITS THAT MUST BE INSTITUTED IT IS MANIFEST THAT THE COST OF PREPARING THE NECESSARY ABSTRACTS OF TITLE WILL BE TOO GREAT A TAX ON THE RESOURCES OF THAT DEPARTMENT. IN THE CIRCUMSTANCES, IT IS THOUGHT THAT THIS DEPARTMENT SHOULD ASSUME THE BURDEN OF THEIR PREPARATION, AND PAY THE COST FROM FUNDS APPROPRIATED FOR THE PROSECUTION OF THE FLOOD-CONTROL PROJECT. WITH YOUR APPROVAL IT IS PROPOSED TO DO SO, AND TO CONTRACT WITH COMPETENT ABSTRACT AND TITLE CONCERNS, AFTER INVITING COMPETITIVE BIDS, FOR FURNISHING THE ABSTRACTS REQUIRED. I SHALL BE PLEASED IF YOU WILL ADVISE ME WHETHER THIS PROCEDURE IS LEGALLY PERMISSIBLE.

AS THE DEPARTMENT IS CONTEMPLATING REQUESTING THE IMMEDIATE INSTITUTION OF PROCEEDINGS FOR THE CONDEMNATION OF APPROXIMATELY 35 PARCELS OF LAND COVERING AN IMPORTANT FEATURE OF THE PROJECT, AN EARLY DECISION WILL BE APPRECIATED.

THE APPROPRIATION FOR CARRYING OUT THE PROVISIONS OF THE FLOOD CONTROL ACT IS FOUND IN THE SECOND DEFICIENCY ACT OF 1928, APPROVED MAY 29, 1928, 45 STAT. 930, AND IS IN THE FOLLOWING LANGUAGE:

FOR PROSECUTING WORK OF FLOOD CONTROL IN ACCORDANCE WITH THE PROVISIONS OF THE FLOOD CONTROL ACT, APPROVED MAY 15, 1928, $14,000,000.

THE ACT OF MARCH 2, 1889, 25 STAT. 941, REQUIRES THAT ABSTRACTS OF TITLE BE FURNISHED BY GRANTORS OF SITES FOR PUBLIC BUILDINGS FREE OF EXPENSE TO THE UNITED STATES. THIS, HOWEVER, DOES NOT APPLY TO LANDS NOT PURCHASED AS SITES FOR PUBLIC BUILDINGS. (8 COMP. DEC. 212.)

SECTION 355 OF THE REVISED STATUTES PROVIDES:

NO PUBLIC MONEY SHALL BE EXPENDED UPON ANY SITE OF LAND PURCHASED BY THE UNITED STATES FOR THE PURPOSES OF ERECTING THEREON ANY ARMORY, ARSENAL, FORT, FORTIFICATION, NAVY YARD, CUSTOMHOUSE, LIGHTHOUSE, OR OTHER PUBLIC BUILDING, OF ANY KIND WHATEVER, UNTIL THE WRITTEN OPINION OF THE ATTORNEY GENERAL SHALL BE HAD IN FAVOR OF THE VALIDITY OF THE TITLE, NOR UNTIL THE CONSENT OF THE LEGISLATURE OF THE STATE IN WHICH THE LAND OR SITE MAY BE, TO SUCH PURCHASE, HAS BEEN GIVEN. THE DISTRICT ATTORNEYS OF THE UNITED STATES, UPON THE APPLICATION OF THE ATTORNEY GENERAL, SHALL FURNISH ANY ASSISTANCE OR INFORMATION IN THEIR POWER IN RELATION TO THE TITLES OF THE PUBLIC PROPERTY LYING WITHIN THEIR RESPECTIVE DISTRICTS. AND THE SECRETARIES OF THE DEPARTMENTS, UPON THE APPLICATION OF THE ATTORNEY GENERAL, SHALL PROCURE ANY ADDITIONAL EVIDENCE OF TITLE WHICH HE MAY DEEM NECESSARY, AND WHICH MAY NOT BE IN THE POSSESSION OF THE OFFICERS OF THE GOVERNMENT, AND THE EXPENSE OF PROCURING IT SHALL BE PAID OUT OF THE APPROPRIATIONS MADE FOR THE CONTINGENCIES OF THE DEPARTMENTS RESPECTIVELY.

IT HAS BEEN THE UNIVERSAL PRACTICE FOR YEARS TO PAY THE COSTS OF ABSTRACTS OF TITLE FROM THE APPROPRIATION FOR THE PURCHASE OF THE LAND PROVIDED SUCH EXPENSES ARISE IN CONNECTION WITH THE PURCHASE AND NOT IN CONNECTION WITH CONDEMNATION PROCEEDINGS. (3 COMP. DEC. 216; 3 COMP. GEN. 569.) WHEN, HOWEVER, CONDEMNATION PROCEEDINGS ARE NECESSARY IN THE ACQUISITION OF TITLE, THE EXPENSES OF SUCH PROCEEDINGS, INCLUDING THE COSTS OF ABSTRACTS OF TITLE NECESSITATED THEREBY, HAVE BEEN HELD TO BE CHARGEABLE TO THE APPROPRIATIONS MADE FOR THE DEPARTMENT OF JUSTICE. COMP. DEC. 216; 8 ID. 212; 9 ID. 569.) IT HAS BEEN HELD, HOWEVER, THAT ABSTRACTS OF TITLE PROCURED AFTER THE FINAL JUDGMENT IN CONDEMNATION PROCEEDINGS AND FOR THE PURPOSE OF DETERMINING TO WHOM THE AMOUNTS AWARDED SHOULD BE PAID ARE NOT EXPENSES OF THE CONDEMNATION PROCEEDINGS, AND THAT THE COST IS, THEREFORE, NOT PAYABLE FROM THE APPROPRIATIONS AVAILABLE FOR THE COSTS OF THE SUITS. (23 COMP. DEC. 53, AFFIRMED ON RECONSIDERATION DECEMBER 21, 1916, APPEAL 26084; AND A.D. 7162, OCTOBER 5, 1922.)

THE FLOOD-CONTROL PROJECT, AS AUTHORIZED BY THE ACT OF MAY 15, 1928, 45 STAT. 536, INVOLVES THE ACQUISITION OF A LARGE NUMBER OF TRACTS OF LAND, EASEMENTS, AND RIGHTS OF WAY AND THE SECRETARY OF WAR IS AUTHORIZED TO ACQUIRE THE SAME EITHER BY PURCHASE OR BY CONDEMNATION PROCEEDINGS. THE ACT AUTHORIZES HIM TO CAUSE CONDEMNATION PROCEEDINGS TO BE INSTITUTED IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT IN WHICH THE LANDS INVOLVED ARE SITUATED. UNDER DECISIONS HEREINBEFORE CITED THE NECESSARY EXPENSE OF ABSTRACTS OF TITLE NECESSARY IN CONNECTION WITH THE PURCHASE OF SUCH LANDS WITHOUT CONDEMNATION PROCEEDINGS MAY BE PAID FROM THE APPROPRIATION FOR CARRYING OUT THE PROVISIONS OF THE FLOOD CONTROL ACT. IT IS UNDERSTOOD THAT IN MANY CASES IT WILL BE NECESSARY TO OBTAIN ABSTRACTS OF TITLE BEFORE THE INSTITUTION OF CONDEMNATION PROCEEDINGS. THE COSTS OF ANY ABSTRACTS SO OBTAINED BY THE WAR DEPARTMENT, AS WELL AS OTHER NECESSARY EXPENSES INCURRED BY IT INCIDENT TO THE ACQUISITION BEFORE THE INSTITUTION OF CONDEMNATION PROCEEDINGS, MAY BE CONSIDERED AS COSTS INCIDENT TO THE PROSECUTION OF THE WORK AND PAYABLE UNDER APPROPRIATION THEREFOR, RATHER THAN UNDER THE APPROPRIATIONS OF THE DEPARTMENT OF JUSTICE. WHEN ABSTRACTS ARE NECESSARY UNDER SUCH CIRCUMSTANCES, THEY SHOULD BE OBTAINED BY CONTRACT AFTER PROPER ADVERTISING. HOWEVER, ANY ABSTRACTS REQUIRED AFTER THE INSTITUTION OF CONDEMNATION PROCEEDINGS FOR USE IN SUCH PROCEEDINGS MUST BE CONSIDERED AS EXPENSES OF THE CONDEMNATION PROCEEDINGS AND CHARGEABLE, IF OTHERWISE CORRECT AND PROPER, UNDER THE AVAILABLE APPROPRIATIONS OF THE DEPARTMENT OF JUSTICE IN ACCORDANCE WITH THE LONG-ESTABLISHED PRACTICE IN SUCH MATTERS.