A-5484, NOVEMBER 6, 1924, 4 COMP. GEN. 428

A-5484: Nov 6, 1924

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IS AUTHORIZED WHERE A NAVY AIRPLANE ASSIGNED TO AND OPERATED BY THE MARINE CORPS LANDED IN A FIELD WITHOUT DAMAGE TO THE PROPERTY AND WITHOUT PRIOR AGREEMENT WITH THE OWNER OR WITHOUT HIS KNOWLEDGE OR ASSENT. WHEREIN WAS DISALLOWED IN THE ACCOUNTS OF COMMANDER MAYO CREDIT FOR $15 PAID TO THE SUNBURY SUPPLY CO. FOR THE PURPOSE OF THIS DECISION IT WILL BE ASSUMED THAT THE COMPANY OWNED AND HAD POSSESSION THEREOF. IT IS REPORTED THAT THERE WERE NO GROWING CROPS IN THE FIELD AT THAT TIME AND NO DAMAGE WAS DONE TO ANY PART OF THE FIELD OR SHRUBBERY IN THE VICINITY. HAS NOT CONTENDED THAT THERE WAS ANY DAMAGE BUT BASES ITS CLAIM UPON AN IMPLIED CONTRACT TO PAY FOR THE USE AND OCCUPATION OF THE PROPERTY.

A-5484, NOVEMBER 6, 1924, 4 COMP. GEN. 428

LANDING OF GOVERNMENT AIRPLANES - USE OF PRIVATE PROPERTY - DAMAGES NEITHER PAYMENT FOR THE USE AND OCCUPATION OF PRIVATE PROPERTY NOR FOR DAMAGES THERETO UNDER THE PROVISIONS OF THE APPROPRIATION "AVIATION, NAVY, 1923," ACT OF JULY 1, 1922, 42 STAT. 805, IS AUTHORIZED WHERE A NAVY AIRPLANE ASSIGNED TO AND OPERATED BY THE MARINE CORPS LANDED IN A FIELD WITHOUT DAMAGE TO THE PROPERTY AND WITHOUT PRIOR AGREEMENT WITH THE OWNER OR WITHOUT HIS KNOWLEDGE OR ASSENT.

DECISION BY COMPTROLLER GENERAL MCCARL, NOVEMBER 6, 1924:

COMMANDER F. G. PYNE, UNITED STATES NAVY, AS CUSTODIAN OF THE RETAINED RECORDS OF COMMANDER C. G. MAYO, UNITED STATES NAVY, REQUESTED SEPTEMBER 29, 1924, REVIEW OF SETTLEMENT NO. M-5618-N, DATED APRIL 12, 1924, WHEREIN WAS DISALLOWED IN THE ACCOUNTS OF COMMANDER MAYO CREDIT FOR $15 PAID TO THE SUNBURY SUPPLY CO., FOR THE USE OF A FIELD IN CONNECTION WITH THE LANDING OF A NAVY AIRPLANE, ASSIGNED TO AND OPERATED BY THE MARINE CORPS, ON WALNUT STREET FIELD, SUNBURY, PA., APRIL 21, 1923. NO EVIDENCE HAS BEEN SUBMITTED SHOWING THAT THE SUNBURY SUPPLY CO. OWNED OR HAD ANY INTEREST IN THE PROPERTY; HOWEVER, FOR THE PURPOSE OF THIS DECISION IT WILL BE ASSUMED THAT THE COMPANY OWNED AND HAD POSSESSION THEREOF.

IT IS REPORTED THAT THERE WERE NO GROWING CROPS IN THE FIELD AT THAT TIME AND NO DAMAGE WAS DONE TO ANY PART OF THE FIELD OR SHRUBBERY IN THE VICINITY. THE SUNBURY SUPPLY CO., HAS NOT CONTENDED THAT THERE WAS ANY DAMAGE BUT BASES ITS CLAIM UPON AN IMPLIED CONTRACT TO PAY FOR THE USE AND OCCUPATION OF THE PROPERTY. THE LANDING OF THE PLANE WAS EFFECTED WITHOUT PRIOR AGREEMENT WITH CLAIMANT AND WITHOUT ITS PRIOR KNOWLEDGE OR ASSENT, THE LANDING BEING A TRESPASS ON THE REAL PROPERTY AND A TORT.

ORIGINALLY, BETWEEN INDIVIDUALS, THE ONLY REMEDY OF ONE WHO HAD SUFFERED FROM THE WRONGDOING OF ANOTHER WAS BY A TORT ACTION, BUT THERE ARE AT PRESENT A FEW INSTANCES IN WHICH THE INJURED PARTY IS PERMITTED TO TREAT THE TORTIOUS ACT AS HAVING CREATED A CONTRACT BETWEEN HIMSELF AND THE TORTFEASOR, AND TO WAIVE THE CAUSE OF ACTION ARISING IN TORT AND SUE ON THE IMPLIED CONTRACT. THE DOCTRINE OF WAIVING A TORT AND SUING IN ASSUMPSIT IS SELDOM, IF EVER, APPLIED WHERE THE TORT IN QUESTION IS A NAKED TRESPASS. AN ACTION FOR USE AND OCCUPATION OF REAL PROPERTY IS FOUNDED ON A CONTRACT EXPRESS OR IMPLIED, AND BEFORE A RECOVERY CAN BE HAD EX CONTRACTO IT MUST APPEAR THAT THE RELATION OF LANDLORD AND TENANT EXISTED BETWEEN THE PARTIES; UNDER NO OTHER CIRCUMSTANCES WILL THE ACTION LIE. TITLE IN THE PLAINTIFF AND USE AND OCCUPATION BY THE DEFENDANT ARE NOT ENOUGH. ACCORDINGLY, IF ONE ENTERS AS A TRESPASSER UPON ANOTHER'S LAND, AN ACTION FOR USE AND OCCUPATION CAN NOT BE MAINTAINED. LLOYD V. HOUGH, 1 HOW. (U.S.) 160. THE INSTANT CASE WAS ONE OF A MERE NAKED TRESPASS AND THE ONLY CLAIM OF THE OWNER, IF ANY, IS ONE SOUNDING IN TORT FOR THE TRESPASS.

THE APPROPRIATION "AVIATION, NAVY, 1923," 42 STAT. 805, PROVIDES:

* * * THAT THE SECRETARY OF THE NAVY IS HEREBY AUTHORIZED TO CONSIDER, ASCERTAIN, ADJUST, DETERMINE, AND PAY OUT OF THIS APPROPRIATION THE AMOUNTS DUE ON CLAIMS FOR DAMAGES WHICH HAVE OCCURRED OR MAY OCCUR TO PRIVATE PROPERTY GROWING OUT OF THE OPERATIONS OF NAVAL AIRCRAFT, WHERE SUCH CLAIM DOES NOT EXCEED THE SUM OF $250: PROVIDED FURTHER, THAT ALL CLAIMS ADJUSTED UNDER THIS AUTHORITY DURING ANY FISCAL YEAR SHALL BE REPORTED IN DETAIL TO THE CONGRESS BY THE SECRETARY OF THE NAVY * * *.

THE CLAIM IS NOT ONE FOR ACTUAL DAMAGES TO PRIVATE PROPERTY AND CAN NOT BE CONSIDERED AS BEING WITHIN THE APPROPRIATION ACT QUOTED.