A-37291, DECEMBER 22, 1931, 11 COMP. GEN. 250

A-37291: Dec 22, 1931

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PRIVATE PROPERTY - DESTRUCTION - RIVER AND HARBOR WORKS WHERE PRIVATE PROPERTY IS DESTROYED BY THE GOVERNMENT IN THE PROSECUTION OF RIVER AND HARBOR WORKS DULY AUTHORIZED BY LAW. A CONTRACT IS IMPLIED TO MAKE COMPENSATION FOR ITS VALUE PAYABLE UNDER THE APPROPRIATION MADE AVAILABLE FOR THE PROSECUTION OF THE WORK. 1931: THERE HAVE BEEN FORWARDED TO THIS OFFICE BY THE CHIEF OF ENGINEERS YOUR EXPLANATIONS RELATIVE TO THE ITEM OF $86.10 PAID TO JAMES C. CREDIT FOR WHICH WAS DISALLOWED ON VOUCHER 2691. CREDIT FOR THE PAYMENT WAS DISALLOWED BY THIS OFFICE IN THE ACCOUNTS OF THE DISBURSING OFFICER FOR THE REASON THAT THE DAMAGE FOR WHICH PAYMENT WAS MADE WAS CAUSED BY THE DELIBERATE ACTS OF THE EMPLOYEES IN THE PROSECUTION OF RIVER AND HARBOR WORKS AND WAS NOT THE RESULT OF AN ACCIDENT OR COLLISION AND.

A-37291, DECEMBER 22, 1931, 11 COMP. GEN. 250

PRIVATE PROPERTY - DESTRUCTION - RIVER AND HARBOR WORKS WHERE PRIVATE PROPERTY IS DESTROYED BY THE GOVERNMENT IN THE PROSECUTION OF RIVER AND HARBOR WORKS DULY AUTHORIZED BY LAW, A CONTRACT IS IMPLIED TO MAKE COMPENSATION FOR ITS VALUE PAYABLE UNDER THE APPROPRIATION MADE AVAILABLE FOR THE PROSECUTION OF THE WORK.

COMPTROLLER GENERAL MCCARL TO CAPT. THEODORE WYMAN, JR., UNITED STATES ARMY, DECEMBER 22, 1931:

THERE HAVE BEEN FORWARDED TO THIS OFFICE BY THE CHIEF OF ENGINEERS YOUR EXPLANATIONS RELATIVE TO THE ITEM OF $86.10 PAID TO JAMES C. MAUPIN FOR DAMAGE TO GROWING WHEAT BY A UNITED STATES ENGINEERS SURVEY PARTY ERECTING A TARGET TRIANGULATION STATION IN CONNECTION WITH RIVER AND HARBOR WORKS, CREDIT FOR WHICH WAS DISALLOWED ON VOUCHER 2691, JANUARY, 1931, ACCOUNTS OF FIRST LIEUT. R. WHITAKER.

THE CLAIM IN QUESTION HAD BEEN ADMINISTRATIVELY CONSIDERED AND PAID AS UNDER THE PROVISIONS OF THE ACT OF JUNE 5, 1920, 41 STAT. 1015, AND CREDIT FOR THE PAYMENT WAS DISALLOWED BY THIS OFFICE IN THE ACCOUNTS OF THE DISBURSING OFFICER FOR THE REASON THAT THE DAMAGE FOR WHICH PAYMENT WAS MADE WAS CAUSED BY THE DELIBERATE ACTS OF THE EMPLOYEES IN THE PROSECUTION OF RIVER AND HARBOR WORKS AND WAS NOT THE RESULT OF AN ACCIDENT OR COLLISION AND, THEREFORE, WAS NOT COVERED BY THE ACT OF JUNE 5, 1920.

IT IS NOW ACKNOWLEDGED BY THE ADMINISTRATIVE OFFICE THAT THE PAYMENT WAS NOT AUTHORIZED UNDER THE PROVISIONS OF THE ACT OF JUNE 5, 1920, BUT THERE IS QUOTED THE ACT OF APRIL 24, 1888, 25 STAT. 94, AND THERE ARE CITED VARIOUS COURT DECISIONS AND 7 COMP. DEC. 767, AND DECISION OF THIS OFFICE DATED AUGUST 20, 1927, A-19473, PURPORTING TO SHOW THAT PAYMENT COULD AND SHOULD HAVE BEEN MADE AS ON AN OBLIGATION UNDER AN IMPLIED CONTRACT UNDER THE PROVISIONS OF THE ACT OF APRIL 24, 1888, AND IT IS REQUESTED BY YOU "THAT THE WORD "DAMAGE" SHOWN ON THE FACE OF THE VOUCHER BE CHANGED TO SHOW THE PROCUREMENT OF 3 ACRES OF GROWING WHEAT AT $28.70 PER ACRE; THAT SUCH OTHER CORRECTIONS BE MADE THEREON AS WILL CAUSE THE VOUCHER TO SHOW THAT THE ACTIONS WERE TAKEN COMFORMABLY WITH SECTION 519, PAGE 1082, CODE OF THE LAWS OF THE UNITED STATES (25 STATS. 94); AND THAT THE DISALLOWANCE TO THE VOUCHER BE REMOVED.'

THE ACT OF APRIL 24, 1888, CONTAINED THE FOLLOWING PROVISIONS:

THAT THE SECRETARY OF WAR MAY CAUSE PROCEEDINGS TO BE INSTITUTED,IN THE NAME OF TH UNITED STATES, IN ANY COURT HAVING JURISDICTION OF SUCH PROCEEDINGS, FOR THE ACQUIREMENT BY CONDEMNATION OF ANY LAND, RIGHT OF WAY, OR MATERIAL NEEDED TO ENABLE HIM TO MAINTAIN, OPERATE OR PROSECUTE WORKS FOR THE IMPROVEMENT OF RIVERS AND HARBORS FOR WHICH PROVISION HAS BEEN MADE BY LAW; SUCH PROCEEDINGS TO BE PROSECUTED IN ACCORDANCE WITH THE LAWS RELATING TO SUITS FOR THE CONDEMNATION OF PROPERTY OF THE STATES WHEREIN THE PROCEEDINGS MAY BE INSTITUTED: PROVIDED, HOWEVER, THAT WHEN THE OWNER OF SUCH LAND, RIGHT OF WAY, OR MATERIAL SHALL FIX A PRICE FOR THE SAME, WHICH IN THE OPINION OF THE SECRETARY OF WAR, SHALL BE REASONABLE, HE MAY PURCHASE THE SAME AT SUCH PRICE WITHOUT FURTHER DELAY: AND PROVIDED FURTHER, THAT THE SECRETARY OF WAR IS HEREBY AUTHORIZED TO ACCEPT DONATIONS OF LANDS OR MATERIALS REQUIRED FOR THE MAINTENANCE OR PROSECUTION OF SUCH WORKS.

IT WILL BE NOTED THIS ACT DEALS IN SPECIFIC TERMS WITH THE ACQUISITION OF LAND, RIGHT OF WAY, OR MATERIAL NEEDED IN MAINTENANCE, OPERATION, OR PROSECUTION OF WORKS AUTHORIZED FOR THE IMPROVEMENT OF RIVERS AND HARBORS. IN THE CASE HERE UNDER CONSIDERATION THERE IS NOT INVOLVED THE ACQUISITION OR PROCUREMENT OF ANY LAND, RIGHT OF WAY, OR MATERIAL BUT MERELY THE DESTRUCTION OF OR DAMAGE TO THE GROWING WHEAT. UNDER SUCH CIRCUMSTANCES THE PROVISIONS OF THE ACT OF 1888, SUPRA, MAY NOT BE CONSIDERED AS APPLICABLE. HOWEVER, IN THE DECISION CITED, 7 COMP. DEC. 767, INVOLVING A QUESTION SUBSTANTIALLY THE SAME AS THAT PRESENTED IN THIS MATTER, IT WAS HELD, IN SUBSTANCE, THAT WHERE PRIVATE PROPERTY IS DESTROYED BY THE GOVERNMENT FOR ITS OWN BENEFIT WITH THE ASSENT OF THE OWNER, A CONTRACT IS IMPLIED TO MAKE COMPENSATION FOR ITS VALUE.

THE RECORD IN THE PRESENT CASE DOES NOT SHOW THAT THERE WAS AN AGREEMENT OR UNDERSTANDING FOR THE PAYMENT OF THE DAMAGE TO THE WHEAT, NEITHER IS IT SHOWN WHETHER THE OWNER CONSENTED TO THE SURVEYING PARTY CAUSING THE DAMAGE. HOWEVER, THE FACTS HERE APPEAR TO BE ANALOGOUS WITH THE FACTS INVOLVED IN THE DECISION CITED WITH THE EXCEPTION OF THE ASSENT OF THE OWNER. AND IN VIEW OF ALL OF THE CIRCUMSTANCES, THERE WILL BE ALLOWED CREDIT IN THE ACCOUNTS OF LIEUTENANT WHITAKER FOR THE AMOUNT PAID IN THIS CASE, THE VOUCHER TO REMAIN AS IT IS BUT THE ADMINISTRATIVE ACTION WITH REFERENCE TO THE ACT OF JUNE 5, 1920, TO BE DISREGARDED.