A-3957, AUGUST 26, 1924, 4 COMP. GEN. 211

A-3957: Aug 26, 1924

Additional Materials:

Contact:

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

 

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

UNLESS IT IS SHOWN THAT THE WEAR AND TEAR WERE UNREASONABLE. THE UNITED STATES IS NOT LIABLE FOR UNPAID RENT UNDER A LEASE PRIOR TO ITS EFFECTIVE DATE. IN THE ABSENCE OF AN AFFIRMATIVE SHOWING THAT IT WAS IN ACTUAL POSSESSION OR CONTROL OF THE PROPERTY DURING THE PERIOD. THE CLAIM FOR RESTORATION OF THE PREMISES WAS DISALLOWED ON THE GROUND THAT THE LEASE MADE NO PROVISION FOR DAMAGES. THE TERM OF THE LEASE TO RUN FROM THE DATE SUCH PROPERTY IS DELIVERED INTO THE POSSESSION OF THE LESSEE AND TERMINATING JUNE 30. IT WAS THEREIN MUTUALLY UNDERSTOOD AND AGREED THAT IN EVENT SUCH APPROPRIATIONS WERE NOT SO AVAILABLE THE AGREEMENT WAS TO AUTOMATICALLY TERMINATE AS OF JUNE 30. WHICH CONSENT IS HEREBY EXPRESSLY GIVEN.

A-3957, AUGUST 26, 1924, 4 COMP. GEN. 211

LEASES - RENT - RESTORATION OF PREMISES AT EXPIRATION OF LEASE A LEASE PROVIDING FOR THE RETURN OF THE PROPERTY IN LIKE GOOD ORDER AND CONDITION AS WHEN RECEIVED, REASONABLE USE AND WEAR THEREOF AND DAMAGE BY FIRE OR OTHER UNAVOIDABLE CASUALTY EXCEPTED, DOES NOT RENDER THE UNITED STATES LIABLE FOR THE COST OF RESTORATION, UNLESS IT IS SHOWN THAT THE WEAR AND TEAR WERE UNREASONABLE. THE UNITED STATES IS NOT LIABLE FOR UNPAID RENT UNDER A LEASE PRIOR TO ITS EFFECTIVE DATE, IN THE ABSENCE OF AN AFFIRMATIVE SHOWING THAT IT WAS IN ACTUAL POSSESSION OR CONTROL OF THE PROPERTY DURING THE PERIOD.

DECISION BY COMPTROLLER GENERAL MCCARL, AUGUST 26, 1924:

JAMES P. DONAHUE REQUESTED JULY 7, 1924, REVIEW OF SETTLEMENT NO. M 14896, DATED SEPTEMBER 25, 1923, DISALLOWING HIS CLAIM IN THE SUM OF $500 AS ESTIMATED COST OF RESTORING THE COLFAX SPRINGS RAILWAY PROPERTY LEASED BY THE UNITED STATES VETERANS' BUREAU UNDER A LEASE AGREEMENT DATED SEPTEMBER 24, 1921, AND PRESENTS AN ADDITIONAL CLAIM FOR RENTAL OF THE PREMISES FROM MAY 1, 1921, TO JULY 30, 1921. THE CLAIM FOR RESTORATION OF THE PREMISES WAS DISALLOWED ON THE GROUND THAT THE LEASE MADE NO PROVISION FOR DAMAGES.

UNDER DATE OF SEPTEMBER 24, 1921, AN ASSISTANT SECRETARY OF THE TREASURY WROTE THE COLFAX SPRINGS RAILWAY CO. (INC.) THAT ITS PROPOSAL OF JULY 1, 1921, AS AMENDED BY PROPOSAL OF SEPTEMBER 12, 1921, TO LEASE TO THE UNITED STATES FOR THE USE OF THE PUBLIC HEALTH SERVICE THE COLFAX SPRINGS RAILWAY PROPERTY HAD BEEN ACCEPTED, INCLUDING ALL ITS RIGHTS AND INTERESTS IN THE RIGHT OF WAY, ROAD BED, TRACK, ROLLING STOCK AND EQUIPMENT AND PARAPHERNALIA OF ALL KINDS WHATSOEVER NECESSARY OR USEFUL IN THE SUCCESSFUL OPERATION OF THE RAILROAD PROPERTY FOR THE TRANSPORTATION OF PERSONS OR MATERIAL OR SUPPLIES OF ANY KIND FROM A POINT AT OR NEAR THE DEPOT IN COLFAX, IOWA, TO THE GROUNDS OF PUBLIC HEALTH SERVICE HOSPITAL NO. 75, COLFAX, IOWA, THE LENGTH OF THE TRACK SO LEASED BEING 1 1/4 MILES MORE OR LESS, THE TERM OF THE LEASE TO RUN FROM THE DATE SUCH PROPERTY IS DELIVERED INTO THE POSSESSION OF THE LESSEE AND TERMINATING JUNE 30, 1923, CONTINGENT, HOWEVER, UPON THE AVAILABILITY OF APPROPRIATIONS FROM WHICH RENT FOR SAID PROPERTY MAY BE PAID AFTER JUNE 30, 1922. THE ACCEPTANCE BECAME THE LEASE AGREEMENT, AND IT WAS THEREIN MUTUALLY UNDERSTOOD AND AGREED THAT IN EVENT SUCH APPROPRIATIONS WERE NOT SO AVAILABLE THE AGREEMENT WAS TO AUTOMATICALLY TERMINATE AS OF JUNE 30, 1922, AND THE PARTIES TO THE AGREEMENT RELEASED AS IF THE AGREEMENT HAD RUN ITS FULL TERM. THE UNITED STATES AGREED TO PAY A RENTAL OF $2,000 PER ANNUM, PAYABLE IN EQUAL MONTHLY INSTALLMENTS, AND TO RETURN THE PROPERTY LEASED IN LIKE GOOD ORDER AND CONDITION AS WHEN DELIVERED INTO ITS POSSESSION, ORDINARY WEAR AND TEAR EXCEPTED. THE LEASE PROVIDES:

6. THAT THE LESSEE, AT ITS OWN EXPENSE AND WITH THE CONSENT OF THE LESSOR, WHICH CONSENT IS HEREBY EXPRESSLY GIVEN, SHALL HAVE THE RIGHT TO ALTER OR REMODEL THE PRESENT ROLLING STOCK LEASED HEREBY IN SUCH MANNER AS BEST TO SERVE ITS INTERESTS IN THE TRANSPORTATION OF PATIENTS, PERSONNEL, OR MATERIAL TO AND FROM THE HOSPITAL SITE, AND ALSO TO LAY NEW TRACK, USING THEREFOR SURPLUS MATERIAL OF THE RAILWAY IF AVAILABLE, OR TO RELAY TRACK AT PRESENT IN PLACE, WITHIN THE AREA LEASED TO THE UNITED STATES BY ONE JAMES P. DONAHUE, UNDER DATE OF MARCH 26, 1921, KNOWN AS THE COLFAX HOTEL AND MINERAL SPRINGS PROPERTY, IN MANNER BEST FITTED TO EXPEDITE THE LOADING, UNLOADING, OR HANDLING OF FUEL AND OTHER SUPPLIES TRANSPORTED TO AND FROM THE HOSPITAL OVER THE LEASED PROPERTY.

7. THAT AT THE TERMINATION OF THIS AGREEMENT, BY LAPSE OF TIME OR OTHERWISE, THE LESSEE WILL QUIETLY AND PEACEABLY QUIT, RELINQUISH, AND GIVE UP THE SAID LEASED PROPERTY IN LIKE GOOD ORDER AND CONDITION AS WHEN SAME WAS TAKEN OVER BY THE LESSEE, EXCEPT THAT THE LESSOR, IF IT SHALL SO ELECT, SHALL HAVE THE RIGHT TO DEMAND RETURN OF THE PROPERTY IN THE CHANGED CONDITION RESULTING FROM OPERATION BY THE LESSEE OF THE RIGHTS RESERVED UNDER ARTICLE 6 HEREOF, ORDINARY AND REASONABLE WEAR AND TEAR EXCEPTED IN ANY EVENT, AS WELL AS DAMAGE BY FIRE OR OTHER UNAVOIDABLE CASUALTIES.

AFTER THE EXPIRATION OF THE LEASE AND ON TWO SEPARATE OCCASIONS AT THE DIRECTION OF THE DIRECTOR OF THE UNITED STATES VETERANS' BUREAU, EMPLOYEES OF THE BUREAU MADE AN EXAMINATION OF THE RELEASED AND SURRENDERED PREMISES FOR THE PURPOSE OF DETERMINING THE EXTENT OF THE DAMAGE THERETO AND RECOMMENDED THAT THE CLAIMANT BE ALLOWED $500 DAMAGES IN LIEU OF RESTORATION OF THE PREMISES. THE ALLEGED COST OF THE RESTORATION FOR WHICH CLAIM IS MADE CONSISTS OF THE FOLLOWING:

TABLE RECONDITIONING ELECTRIC RAILWAY AND EQUIPMENT:

REPAIRS TO CONTROLLER AND MOTOR ON PASSENGER CAR ---------- $75

GENERAL REPAIRS TO CAR ------------------------------------ 30

SETTING TWO POLES ----------------------------------------- 35

REALIGNING TRACK ------------------------------------------ 150

CLEARING WATERWAYS ---------------------------------------- 75

RESURFACING ----------------------------------------------- 115

CLEANING TRACK ON PAVEMENT -------------------------------- 20

TOTAL ------------------------------------------------ 500

UNDER THE TERMS OF THE LEASE OF VACATION OF THE PREMISES THE OBLIGATION OF THE UNITED STATES WAS NOT TO RESTORE THE PROPERTY TO THE CONDITION IN WHICH IT WAS PRIOR TO THE OCCUPANCY, BUT TO RETURN IT IN LIKE GOOD ORDER AND CONDITION SUBJECT TO REASONABLE USE AND WEAR THEREOF. THE GOVERNMENT IS NOT RESPONSIBLE FOR ANY DAMAGE BY THE REASONABLE USE AND ORDINARY WEAR AND TEAR. IT HAD THE FREE AND UNRESTRICTED RIGHT TO USE THE PROPERTY FOR ANY AND ALL PURPOSES CONTEMPLATED IN THE LEASE AGREEMENT. WHATEVER DAMAGES WOULD NECESSARILY RESULT FROM THE USE CONTEMPLATED BY THE LEASE MUST FALL UPON THE LESSOR.

THE FACTS NOW IN EVIDENCE AND THE STATEMENT OF THE ALLEGED DAMAGES CLEARLY SHOW THAT THE WEAR AND TEAR SUFFERED WERE NOT BEYOND THE USUAL AND ORDINARY WEAR AND TEAR, ETC., INCIDENT TO SUCH OCCUPANCY AND PROPER USE, AND IN THE ABSENCE OF EVIDENCE SHOWING THAT THE DAMAGES AS ALLEGED WERE BEYOND THE USUAL ORDINARY WEAR AND TEAR, THERE IS NO LEGAL LIABILITY ON THE PART OF THE UNITED STATES FOR PAYMENT OF COST OF RESTORATION NOR A LUMP SUM IN LIEU OF THE CLAIMED ESTIMATED COST THEREOF, IF AT ALL.

WITH REFERENCE TO THE CLAIM FOR UNPAID RENTAL FOR THE PERIOD MAY 1, 1921, TO JULY 30, 1921, IT IS NOT SHOWN AND IT DOES NOT APPEAR THAT THE UNITED STATES WAS IN POSSESSION OR CONTROL OF THE PREMISES DURING SUCH PERIOD FOR WHICH RENTAL IS CLAIMED, NOR THAT POSSESSION, USE, OR CONTROL WAS EXERCISED BY ANY AUTHORIZED OFFICER OR AGENT OF THE UNITED STATES DURING SAID PERIOD. THE AGREEMENT UNDER WHICH THE PROPERTY WAS LEASED TO THE UNITED STATES IS DATED SEPTEMBER 24, 1921, AND WOULD INDICATE THAT THE GOVERNMENT DID NOT OCCUPY OR ASSUME CONTROL OF THE PREMISES UNTIL AFTER THAT DATE. IN THE ABSENCE OF ANY AFFIRMATIVE SHOWING THAT THE PREMISES WERE ACTUALLY IN POSSESSION OF THE UNITED STATES DURING THE PERIOD FOR WHICH RENTAL IS NOW CLAIMED, THE CLAIM MUST BE AND IS DISALLOWED.