A-34970, JANUARY 21, 1931, 10 COMP. GEN. 320

A-34970: Jan 21, 1931

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THERE IS NO AUTHORITY TO PURCHASE LAND FOR THE UNITED STATES SUBJECT TO RESERVATIONS IN THE NATURE OF COVENANTS RUNNING WITH THE LAND. THE RESERVATIONS ARE STATED BY YOU AS FOLLOWS: FIRST. THAT THE GRANTEE WILL CONFORM TO AND ABIDE BY ALL RULES AND REQUIREMENTS THAT MAY BE SUBSEQUENTLY MADE BY PROPER LEGAL AUTHORITY RELATING TO DRAINAGE. THE FOREGOING RESTRICTIONS IS A GENERAL SCHEME FOR THE BENEFIT OF ALL THE LOTS IN SAID SUBDIVISION. THE FOREGOING RESTRICTIONS AND CONDITIONS WILL BE INCORPORATED IN THE DEED TO SAID SUBDIVISION AND THE ACCEPTANCE BY THE GRANTEE OF SUCH DEED SHALL BE CONCLUSIVE EVIDENCE OF THE GRANTEE'S AGREEMENT TO COMPLY WITH THE REQUIREMENTS OF SAID RESTRICTIONS AND CONDITIONS.

A-34970, JANUARY 21, 1931, 10 COMP. GEN. 320

REAL ESTATE - TITLES - RESERVATIONS IN THE ABSENCE OF SPECIFIC LEGISLATION PROVIDING THEREFOR, THERE IS NO AUTHORITY TO PURCHASE LAND FOR THE UNITED STATES SUBJECT TO RESERVATIONS IN THE NATURE OF COVENANTS RUNNING WITH THE LAND.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, JANUARY 21, 1931:

I RECEIVED ON JANUARY 19, 1931, YOUR LETTER DATED JANUARY 16, 1931, REQUESTING DECISION WHETHER ANY OBJECTION WOULD BE RAISED BY THIS OFFICE TO PAYMENT FOR CERTAIN LAND PROPOSED TO BE ACQUIRED BY THE NATIONAL PARK SERVICE OF THE DEPARTMENT OF THE INTERIOR WITHIN THE AREA OF THE COLONIAL NATIONAL MONUMENT, VIRGINIA, UNDER THE AUTHORITY OF THE ACT OF JULY 3, 1930, 46 STAT. 855, IN VIEW OF CERTAIN RESERVATIONS TO WHICH THE TITLE TO SAID LAND WOULD BE SUBJECT.

THE RESERVATIONS ARE STATED BY YOU AS FOLLOWS:

FIRST. THAT SAID LANDS SHALL BE USED FOR RESIDENTIAL PURPOSES ONLY.

SECOND.THAT NO PART OF THE SAID REAL ESTATE SHALL BE SOLD OR LEASED TO ANY PERSON NOT OF CAUCASIAN RACE.

THIRD. THAT NO BUILDING OR BUILDINGS SHALL BE ERECTED ON SAID LAND NEARER THAN TWENTY-FIVE FEET TO THE ABUTTING STREET.

FOURTH. THAT NO BOARD FENCE OF ANY KIND SHALL BE ERECTED ON SAID LAND.

FIFTH. THAT SAID LAND SHALL BE KEPT FREE FROM WEEDS AND ALL RUBBISH.

SIXTH. THAT THE GRANTEE WILL CONFORM TO AND ABIDE BY ALL RULES AND REQUIREMENTS THAT MAY BE SUBSEQUENTLY MADE BY PROPER LEGAL AUTHORITY RELATING TO DRAINAGE, SIDEWALKS, LIGHTS, WATER, AND ALL SANITARY REGULATIONS.

SEVENTH. IF THE OWNERS OF ANY LOT IN SAID SUBDIVISION SHALL HEREAFTER CONVEY OR ATTEMPT TO CONVEY THE SAME TO ANY PERSON OR PERSONS IN VIOLATION OF THE SAID SECOND RESTRICTION ABOVE SET OUT, OR USE SAID LAND FOR OTHER THAN RESIDENTIAL PURPOSES, THEN AND IN THAT EVENT, ANY OTHER LOT OWNER IN SAID SUBDIVISION MAY ENJOIN SUCH VIOLATION BY BILL IN EQUITY.

EIGHTH. IF THE OWNER OF ANY LOT IN SAID SUBDIVISION SHALL HEREAFTER FAIL OR REFUSE TO COMPLY WITH THE REQUIREMENTS OF THE SAID FIFTH AND SIXTH RESTRICTIONS THEN AND IN THAT EVENT A MAJORITY OF THE LOT OWNERS IN SAID SUBDIVISION MAY ENFORCE THE SAME BY BILL IN EQUITY AGAINST THE LOT OWNER OR OWNERS REFUSING TO COMPLY WITH THE SAID FIFTH AND SIXTH RESTRICTIONS.

NINTH. THE FOREGOING RESTRICTIONS IS A GENERAL SCHEME FOR THE BENEFIT OF ALL THE LOTS IN SAID SUBDIVISION, THE INTENTION BEING TO MUTUALLY BENEFIT BY SAID GENERAL SCHEME ALL THE LOTS IN SAID SUBDIVISION, AND THE SAID COVENANTS AND RESTRICTIONS SHALL RUN WITH THE LAND AND BIND THE OWNERS OF EACH AND EVERY LOT, AND HIS AND THEIR SUCCESSORS IN TITLE.

THE FOREGOING RESTRICTIONS AND CONDITIONS WILL BE INCORPORATED IN THE DEED TO SAID SUBDIVISION AND THE ACCEPTANCE BY THE GRANTEE OF SUCH DEED SHALL BE CONCLUSIVE EVIDENCE OF THE GRANTEE'S AGREEMENT TO COMPLY WITH THE REQUIREMENTS OF SAID RESTRICTIONS AND CONDITIONS.

THE ACT OF JULY 3, 1930, SUPRA, PROVIDES THAT SUFFICIENT OF THE AREAS IN THE STATE OF VIRGINIA SPECIFIED FOR THE PURPOSE OF THE ACT SHALL BE ESTABLISHED AND SET APART AS THE COLONIAL NATIONAL MONUMENT FOR THE PRESERVATION OF THE HISTORICAL STRUCTURES AND REMAINS THEREIN AND FOR THE BENEFIT AND ENJOYMENT OF THE PEOPLE.

YOU STATE THAT CERTAIN LAND WHICH IT IS PROPOSED TO ACQUIRE UNDER THE AUTHORITY CONTAINED IN THE SAID ACT OF JULY 3, 1930, CAN ONLY BE ACQUIRED SUBJECT TO NINE RESERVATIONS SET FORTH IN YOUR LETTER, BUT WHICH YOU STATE WILL NOT BE OBJECTIONABLE FROM AN ADMINISTRATIVE STANDPOINT FOR THE PURPOSES OF THE MONUMENT.

IN DECISION TO YOU OF DECEMBER 15, 1928, A-25156, IT WAS HELD THAT UNDER AN APPROPRIATION FOR THE PURCHASE OF LAND FOR CERTAIN INDIANS, THE PURCHASE SUBJECT TO RESERVATION OF TIMBER AND MINERAL RIGHTS WAS NOT AUTHORIZED ON THE GROUND THAT THE AUTHORITY TO PURCHASE LAND INDICATED THE INTENT TO PROCURE A FEE SIMPLE TITLE, FREE OF ALL INCUMBRANCES.

IT IS RECOGNIZED THAT THE RESERVATIONS SOUGHT TO BE IMPOSED ON THE UNITED STATES IN THE INSTANT CASE ARE NOT THE SAME IN EFFECT AS THE RESERVATION OF TIMBER AND MINERAL RIGHTS IN LAND; THAT IS, THEY DO NOT OPERATE AS A QUALIFICATION OR A LIMITATION OF THE FEE-SIMPLE TITLE; NEVERTHELESS, THE RESERVATIONS DO LIMIT THE USE AND ENJOYMENT OF THE LAND WHICH ARE INCIDENT TO A FEE-SIMPLE TITLE AND WOULD HAVE THE EFFECT OF IMPOSING BURDENS AND RESTRICTIONS ON THE UNITED STATES IN THE CARRYING ON OF A GOVERNMENTAL ACTIVITY. NOTE PARTICULARLY THE RESERVATION PROHIBITING USE OF THE PROPERTY FOR OTHER THAN RESIDENTIAL PURPOSES.

I HAVE TO ADVISE, THEREFORE, THAT IN THE ABSENCE OF SPECIFIC LEGISLATIVE AUTHORITY TO ACQUIRE LAND SUBJECT TO THE RESERVATIONS STATED IN YOUR LETTER, THE USE OF AN APPROPRIATION MADE IN TERMS FOR THE PURCHASE OF LAND WOULD NOT BE AUTHORIZED.

IT IS SUGGESTED THAT IF THE LANDS HERE IN QUESTION ARE DEEMED ESSENTIAL TO THE DEVELOPMENT OF THE NATIONAL COLONIAL MONUMENT AUTHORIZED BY THE ACT OF JULY 3, 1930, IT WOULD BE POSSIBLE TO ACQUIRE SUCH LANDS FREE FROM THE RESERVATIONS BY CONDEMNATION PROCEEDINGS WHICH ARE AUTHORIZED IN SAID ACT.