A-58113, DECEMBER 3, 1934, 14 COMP. GEN. 430

A-58113: Dec 3, 1934

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SETOFF - DEPOSIT BY BIDDER WHEN A LEASE OF GRAZING LANDS IS CANCELED FOR FAILURE TO PAY THE AGREED RENTAL AND THE LESSOR SUBMITS A BID FOR A NEW LEASE UPON THE SAME LAND ACCOMPANIED BY A DEPOSIT OF THE FIRST YEAR'S RENT UNDER THE NEW LEASE. IT IS PROPER TO APPLY SUCH DEPOSIT AGAINST HER INDEBTEDNESS TO THE UNITED STATES ARISING OUT OF THE OLD LEASE. 1934: REFERENCE IS HAD TO YOUR LETTER OF OCTOBER 5. SHE WAS NOTIFIED THAT THE LEASE WAS CANCELED. NO INCOME WAS DERIVED FROM THE LAND FOR THE BALANCE OF THE YEAR 1932. ROSS WAS NOT SUCCESSFUL IN SECURING THE LEASE. YOUR DECISION IS REQUESTED AS TO WHETHER THE SUM OF $624 DUE ON JANUARY 1. IS SUBMITTED HEREWITH. RECEIPT IS ACKNOWLEDGED OF YOUR LETTER OF NOVEMBER 8.

A-58113, DECEMBER 3, 1934, 14 COMP. GEN. 430

SETOFF - DEPOSIT BY BIDDER WHEN A LEASE OF GRAZING LANDS IS CANCELED FOR FAILURE TO PAY THE AGREED RENTAL AND THE LESSOR SUBMITS A BID FOR A NEW LEASE UPON THE SAME LAND ACCOMPANIED BY A DEPOSIT OF THE FIRST YEAR'S RENT UNDER THE NEW LEASE, IT IS PROPER TO APPLY SUCH DEPOSIT AGAINST HER INDEBTEDNESS TO THE UNITED STATES ARISING OUT OF THE OLD LEASE.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, DECEMBER 3, 1934:

REFERENCE IS HAD TO YOUR LETTER OF OCTOBER 5, 1934, AS FOLLOWS:

I AM SUBMITTING FOR YOUR DECISION A QUESTION INVOLVING A REFUND OF MONEY DEPOSITED BY MRS. CALLIE T. ROSS, OF PECOS, TEX., IN CONNECTION WITH HER BID FOR THE LEASE OF GRAZING LANDS ON THE PECOS RIVER SECONDARY IRRIGATION PROJECT IN NEW MEXICO.

ON DECEMBER 20, 1929, MRS. ROSS LEASED GRAZING LAND FROM THE GOVERNMENT ON THE PECOS RIVER PROJECT. ON JANUARY 1, 1932, THE RENTAL OF $624 FELL DUE FOR THE YEAR 1932. MRS. ROSS COULD NOT MAKE THE PAYMENT AND ON JANUARY 25, 1932, SHE WAS NOTIFIED THAT THE LEASE WAS CANCELED, AS REQUIRED UNDER A PROVISION OF THE LEASE PROVIDING FOR ITS AUTOMATIC TERMINATION, FOR FAILURE TO MAKE RENTAL PAYMENTS. NO INCOME WAS DERIVED FROM THE LAND FOR THE BALANCE OF THE YEAR 1932.

ON MARCH 3, 1934, THE GOVERNMENT READVERTISED THE SAME LAND TO BE LEASED FOR GRAZING PURPOSES. MRS. ROSS SUBMITTED A BID, ACCOMPANIED BY A DRAFT IN THE SUM OF $374.40, TO COVER THE FIRST YEAR'S RENTAL. MRS. ROSS WAS NOT SUCCESSFUL IN SECURING THE LEASE.

YOUR DECISION IS REQUESTED AS TO WHETHER THE SUM OF $624 DUE ON JANUARY 1, 1932, ON THE FIRST LEASE CONSTITUTES A SUBSISTING DEBT AGAINST MRS. ROSS AGAINST WHICH THE MONEY DEPOSITED WITH THE SECOND BID MUST BE OFFSET.

THE RECORD OF THE CASE, INCLUDING COPY OF THE ORIGINAL LEASE, IS SUBMITTED HEREWITH. PLEASE RETURN SAME WITH YOUR DECISION.

IN RESPONSE TO REQUEST OF OCTOBER 29, 1934, THERE HAS NOW BEEN RECEIVED YOUR LETTER OF NOVEMBER 23, FORWARDING REPORT FROM L. E. FOSTER, SUPERINTENDENT, CARLSBAD, N.MEX., AS FOLLOWS: SUBJECT: LEASE OF LAND TO MRS. C. T. ROSS, PECOS, TEXAS--- LEASE

15R 96--- CARLSBAD PROJECT.

1. RECEIPT IS ACKNOWLEDGED OF YOUR LETTER OF NOVEMBER 8, 1934, CONCERNING THE ABOVE SUBJECT.

2. AFTER CONSULTING SEVERAL OF THE NEIGHBORING CATTLEMEN ADJACENT TO THE ROSS LEASED AREA, I FIND THAT MRS. ROSS APPARENTLY VACATED THE LEASE ABOUT SEPTEMBER 1, 1933. IT IS REPORTED THAT THERE WERE A FEW CATTLE ON THE LAND DURING THE WINTER AND UNTIL APRIL 1, 1934, BUT NO CATTLE OF THE ROSS BRAND WERE ON THE AREA EMBRACED BY THE LEASE AFTER SEPTEMBER 1, 1933.

THE LEASE WITH MRS. ROSS PROVIDED FOR AN ANNUAL RENTAL OF $624, COVERING THE PERIOD JANUARY 1, 1930, TO DECEMBER 31, 1934. SECTION 12 THEREOF PROVIDED:

12. TERMINATION OF LEASE.--- THIS LEASE SHALL TERMINATE AND ALL RIGHTS OF THE LESSEE HEREUNDER SHALL CEASE, AND THE LESSEE SHALL QUIETLY AND PEACEABLY DELIVER TO THE UNITED STATES POSSESSION OF THE LEASED PREMISES IN LIKE CONDITION AS WHEN TAKEN, REASONABLE WEAR AND DAMAGE BY THE ELEMENTS EXCEPTED:

(A) AT THE EXPIRATION OF THE TERM AS PROVIDED BY ARTICLE 5; OR,

(B) WITHOUT NOTICE, UPON DEFAULT IN PAYMENT TO THE UNITED STATES OF ANY INSTALLMENT OF RENTAL CHARGES AS PROVIDED BY ARTICLE 6; OR,

(C) ON DECEMBER 31, OF ANY YEAR, UPON WRITTEN NOTICE BY EITHER PARTY TO THE OTHER, SERVED ON OR BEFORE SEPTEMBER 1, OF SUCH YEAR; OR,

(D) AFTER FAILURE OF THE LESSEE TO OBSERVE ANY OF THE CONDITIONS OF ARTICLES 10 OR 11, AND ON THE TENTH DAY FOLLOWING SERVICE OF WRITTEN NOTICE ON THE LESSEE OF TERMINATION BECAUSE OF FAILURE TO OBSERVE SUCH CONDITION.

THE NOTICE PROVIDED BY THIS ARTICLE SHALL BE SERVED BY REGISTERED MAIL ADDRESSED TO THE RESPECTIVE POST-OFFICE ADDRESSES GIVEN AT THE FOOT OF THIS LEASE, AND THE MAILING OF ANY SUCH NOTICE PROPERLY INCLOSED, ADDRESSED, STAMPED, AND REGISTERED, SHALL BE CONSIDERED SERVICE.

HAD MRS. ROSS NOT CONTINUED THE USE OF THE LAND SO LEASED AFTER JANUARY 1, 1932, NO RENTAL WOULD HAVE BEEN DUE AS THE FAILURE TO MAKE PAYMENT OF THE RENTAL IN ADVANCE AUTOMATICALLY TERMINATED THE LEASE. HOWEVER, HER CONTINUED OCCUPANCY OF THE LAND DURING THE CALENDAR YEAR 1932, AND UNTIL SEPTEMBER 1, 1933, RENDERED HER LIABLE FOR RENT FOR THAT PERIOD AT THE RATES PROVIDED IN THE LEASE, OR A TOTAL OF 1 8/12 YEARS, AT $624 PER YEAR, AMOUNTING TO $1,040. ACCORDINGLY, THE DEPOSIT OF $374.40 SHOULD BE APPLIED IN PART SATISFACTION OF THIS INDEBTEDNESS AND DEPOSITED TO THE CREDIT OF THE RECLAMATION FUND.