A-50548, MAY 15, 1934, 13 COMP. GEN. 349

A-50548: May 15, 1934

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PRIVATE - DAMAGES - CONSEQUENTIAL THE APPROPRIATIONS FOR THE MAINTENANCE OF LANDING FIELDS UNDER THE DEPARTMENT OF COMMERCE ARE NOT AVAILABLE FOR THE PAYMENT OF CONSEQUENTIAL DAMAGES TO ADJOINING PROPERTY OWNERS ALLEGED TO HAVE RESULTED FROM THE LAWFUL AND PROPER MAINTENANCE BY THE UNITED STATES OF SUCH A LANDING FIELD. THE DRIFTING OF SAND AND DUST FROM A LANDING FIELD FOR AIRPLANES TO ADJOINING PROPERTY IS A CONSEQUENTIAL MATTER AND THE UNITED STATES IS NOT LIABLE IN DAMAGES TO SUCH ADJOINING PROPERTY OWNERS. AS DAMAGES ALLEGED TO HAVE RESULTED BECAUSE OF THIS OPERATION AND MAINTENANCE BY THE UNITED STATES OF AN INTERMEDIATE LANDING FIELD NEAR THEIR PROPERTIES. THE CLAIM HAS BEEN MADE THAT THE LANDING FIELD WAS NEGLIGENTLY MAINTAINED AND THAT THIS OFFICE SHOULD RECOMMEND TO THE CONGRESS UNDER THE ACT OF APRIL 10.

A-50548, MAY 15, 1934, 13 COMP. GEN. 349

PROPERTY, PRIVATE - DAMAGES - CONSEQUENTIAL THE APPROPRIATIONS FOR THE MAINTENANCE OF LANDING FIELDS UNDER THE DEPARTMENT OF COMMERCE ARE NOT AVAILABLE FOR THE PAYMENT OF CONSEQUENTIAL DAMAGES TO ADJOINING PROPERTY OWNERS ALLEGED TO HAVE RESULTED FROM THE LAWFUL AND PROPER MAINTENANCE BY THE UNITED STATES OF SUCH A LANDING FIELD. THE DRIFTING OF SAND AND DUST FROM A LANDING FIELD FOR AIRPLANES TO ADJOINING PROPERTY IS A CONSEQUENTIAL MATTER AND THE UNITED STATES IS NOT LIABLE IN DAMAGES TO SUCH ADJOINING PROPERTY OWNERS, ESPECIALLY IN THE ABSENCE OF SHOWING OF NEGLIGENCE IN THE MAINTENANCE AND OPERATION OF SUCH LANDING FIELD.

COMPTROLLER GENERAL MCCARL TO ROMNEY AND NELSON, MAY 15, 1934:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTERS OF APRIL 16 AND 17, 1934, TRANSMITTING CERTAIN AFFIDAVITS IN REFERENCE TO MY LETTER OF NOVEMBER 20, 1933, CONCERNING CLAIMS SUBMITTED BY CHRIS LARSEN FOR $4,100; JOE PARGIS FOR $850; S. L. HINCKLEY FOR $4,150; AND ROYAL TERRY FOR $2,398, AS DAMAGES ALLEGED TO HAVE RESULTED BECAUSE OF THIS OPERATION AND MAINTENANCE BY THE UNITED STATES OF AN INTERMEDIATE LANDING FIELD NEAR THEIR PROPERTIES. THE CLAIM HAS BEEN MADE THAT THE LANDING FIELD WAS NEGLIGENTLY MAINTAINED AND THAT THIS OFFICE SHOULD RECOMMEND TO THE CONGRESS UNDER THE ACT OF APRIL 10, 1928, 45 STAT. 413, THAT AN APPROPRIATION BE MADE FOR THE PAYMENT OF THESE CLAIMS.

THE RECORD DISCLOSES THAT THE DEPARTMENT OF COMMERCE LEASED UNDER CONTRACT C20A-1343, DATED APRIL 16, 1928, APPROXIMATELY 122 ACRES OF LAND AT A RENTAL OF $300 PER YEAR FROM THE CENTRAL UTAH WATER CO. OF DELTA, UTAH, TO BE USED AS AN INTERMEDIATE LANDING FIELD. AT THE TIME THE FIELD WAS RENTED IT WAS COVERED WITH BRUSH WHICH WAS MORE OR LESS EFFECTIVE IN PREVENTING THE SANDY SOIL FROM BEING BLOWN BY THE WIND ONTO OTHER PROPERTY EXCEPT IN SEVERE STORMS. IN ORDER TO PREPARE THE FIELD FOR AIRPLANE LANDING AND ASCENT PURPOSES IT WAS NECESSARY TO REMOVE ALL VEGETATION WHICH WOULD INTERFERE WITH THE OPERATION OF AIRCRAFT. WHEN THAT HAD BEEN DONE, THE SOIL BLEW MORE READILY FROM THE FIELD ONTO ADJOINING PROPERTY. AN EFFORT WAS MADE TO PRODUCE A SOD, BUT THE ATTEMPT WAS UNSUCCESSFUL, AND BECAUSE OF THIS CONDITION AND THE COMPLAINT OF THE NEARBY RESIDENTS, PRESUMABLY MESSRS. LARSEN, PARGIS, HINCKLEY, AND TERRY, THE FIELD WAS ABANDONED IN THE SUMMER OF 1932 AND HAS NOT BEEN SINCE MAINTAINED AND OPERATED BY THE GOVERNMENT.

THIS OFFICE HAS BEEN FURNISHED WITH PHOTOGRAPHS OF THE PROPERTIES INVOLVED AND OF THE LANDING FIELD, AND REGARDLESS OF THE QUESTION WHETHER THERE WAS ACTUALLY SUSTAINED BY THE OWNERS OF SUCH PROPERTIES THE AMOUNT OF DAMAGES CLAIMED BY THEM OR ANY PART THEREOF DURING THE PERIOD FROM APRIL 16, 1928, TO THE SUMMER OF 1932, DUE TO THE DRIFTING OF SAND, ETC., FROM THE LANDING FIELD ONTO THEIR PROPERTY, THERE IS NO LEGAL BASIS FOR THE PAYMENT OF THE CLAIMS BY THE UNITED STATES, AND THE GENERAL RULE IS THAT EQUITY FOLLOWS THE LAW.

THE UNITED STATES DID NOT TAKE THE PROPERTY OF THESE CLAIMANTS UNDER THE RIGHTS OF EMINENT DOMAIN OR OTHERWISE, AND THE ONLY POSSIBLE BASIS FOR THEIR CLAIMS IS THAT THE DAMAGE WAS CONSEQUENTIAL TO THE MAINTENANCE OF THE INTERMEDIATE LANDING FIELD. THE LANDING FIELD WAS MAINTAINED PURSUANT TO STATUTORY AUTHORITY CONFERRED ON THE SECRETARY OF COMMERCE FOR THE ESTABLISHMENT AND IMPROVEMENT OF AIRWAYS, ETC., AND A LEASE WAS ENTERED INTO WITH THE OWNERS OF THE PROPERTY ACTUALLY OCCUPIED BY THE LANDING FIELD. THAT IS TO SAY, THE UNITED STATES WAS IN THE EXERCISE OF ITS PROPER LEGAL AUTHORITY IN THE ESTABLISHMENT AND MAINTENANCE OF THIS LANDING FIELD, AND THE LAW IS SETTLED THAT THERE CAN BE NO RECOVERY FROM THE UNITED STATES BY ADJOINING PROPERTY OWNERS FOR CONSEQUENTIAL DAMAGES DUE TO THE TAKING OR PROPER USE BY THE GOVERNMENT OF LAND FOR THE MAINTENANCE BY THE GOVERNMENT OF IMPROVEMENTS ON ITS PROPERTY. AS STATED BY THE SUPREME COURT OF THE UNITED STATES IN TRANSPORTATION CO. V. CHICAGO, 99 U.S. 635:

ACTS DONE IN THE PROPER EXERCISE OF GOVERNMENTAL POWERS, AND NOT DIRECTLY ENCROACHING UPON PRIVATE PROPERTY, ALTHOUGH THEIR CONSEQUENCES MAY IMPAIR ITS USE, ARE NOT A TAKING WITHIN THE MEANING OF THE CONSTITUTIONAL PROVISION WHICH FORBIDS THE TAKING OF SUCH PROPERTY FOR PUBLIC USE WITHOUT JUST COMPENSATION THEREFOR.

SIMILAR CONCLUSIONS WERE REACHED IN GIBSON V. UNITED STATES, 166 U.S. 269; TEMPLE V. UNITED STATES, 248 U.S. 121; HORSTMANN CO. V. UNITED STATES, 257 U.S. 138; KEOKUK AND HAMILTON BRIDGE CO. V. UNITED STATES, 260 U.S. 125; SANGUINETTI V. UNITED STATES, 264 U.S. 146; AND MITCHELL ET AL. V. UNITED STATES, 267 U.S. 341. SEE ALSO TOMPKINS V. UNITED STATES, 45 CT.CLS. 66.

IT IS THUS TOO CLEAR FOR SERIOUS ARGUMENT THAT THERE IS NO LEGAL BASIS FOR THESE CLAIMS FOR DAMAGES TO ADJOINING PROPERTY OWNERS BY REASON OF THE LAWFUL ESTABLISHMENT AND MAINTENANCE OF THIS INTERMEDIATE LANDING FIELD AT LYNNDYL, UTAH. A COMPARISON OF THE ASSESSED VALUE OF THE LAND, BUILDINGS, AND FURNITURE OF THESE CLAIMANTS AS SHOWN BY THE RECORDS IN OFFICE OF THE ASSESSOR, FILMORE, MILLARD COUNTY, UTAH, WITH THE AMOUNT OF THESE CLAIMS INDICATES VERY WIDE DISPARITY, BUT HOWEVER THAT MAY BE, IT CANNOT BE CONSIDERED BY THIS OFFICE THAT THE UNITED STATES IN THE LAWFUL USE OF ITS PROPERTY IN THE DISCHARGE OF A LEGAL FUNCTION IMPOSED BY LAW IS CHARGED WITH THE EQUITABLE BURDEN OF PAYING TO ADJOINING PROPERTY OWNERS ANY CONSEQUENTIAL DAMAGES RESULTING FROM SUCH USE.

ACCORDINGLY, YOU ARE ADVISED THAT THE REQUEST MUST BE, AND IS, DENIED THAT THIS OFFICE REPORT THESE CLAIMS TO THE CONGRESS UNDER THE ACT OF APRIL 10, 1928, WITH RECOMMENDATION THAT AN APPROPRIATION BE MADE FOR PAYMENT THEREOF IN SOME AMOUNT WHICH MIGHT BE ESTABLISHED AS THE ACTUAL DAMAGES SUSTAINED.