A-66607, NOVEMBER 26, 1935, 15 COMP. GEN. 442

A-66607: Nov 26, 1935

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CLAIMS FOR DAMAGES - TOMBSTONES ON MILITARY RESERVATIONS PAYMENT OF CLAIMS FOR DAMAGES IS NOT AUTHORIZED FROM FUNDS APPROPRIATED BY THE ACT OF APRIL 9. 1935: THERE IS BEFORE THIS OFFICE FOR CONSIDERATION THE CLAIMS OF SAMUEL H. TO TOMBSTONES OR MONUMENTS STATED TO HAVE BEEN ERECTED BY JOHN C. WHO WERE BURIED IN A PRIVATE CEMETERY. THE FEE SIMPLE TITLE TO WHICH WAS TRANSFERRED JUNE 21. FUNDS ARE CURRENTLY APPROPRIATED BY THE ACT OF APRIL 9. OR MAINTENANCE OF THE ARMY THAT HAVE ACCRUED. PAYMENT THEREOF WILL BE ACCEPTED BY THE OWNERS OF THE PROPERTY IN FULL SATISFACTION OF SUCH DAMAGE. IT MUST BE ESTABLISHED THAT SUCH DAMAGES WERE INCIDENT TO THE TRAINING. THE TIME OF THE BURIAL OF THE PERSONS IN WHOSE MEMORY THE MARKERS IN QUESTION WERE ERECTED.

A-66607, NOVEMBER 26, 1935, 15 COMP. GEN. 442

CLAIMS FOR DAMAGES - TOMBSTONES ON MILITARY RESERVATIONS PAYMENT OF CLAIMS FOR DAMAGES IS NOT AUTHORIZED FROM FUNDS APPROPRIATED BY THE ACT OF APRIL 9, 1935, 49 STAT. 127, PROVIDING FOR PAYMENT OF CLAIMS FOR DAMAGES TO OR LOSS OF PRIVATE PROPERTY INCIDENT TO THE TRAINING, PRACTICE, OPERATION, OR MAINTENANCE OF THE ARMY, WHERE THE CLAIMS INVOLVE DAMAGES TO TOMBSTONES ERECTED IN A PRIVATE CEMETERY ON LAND SUBSEQUENTLY TAKEN OVER BY THE GOVERNMENT FOR MILITARY PURPOSES.

DECISION BY COMPTROLLER GENERAL MCCARL, NOVEMBER 26, 1935:

THERE IS BEFORE THIS OFFICE FOR CONSIDERATION THE CLAIMS OF SAMUEL H. ADAMS, MARY E. HOOPER, MARTHA A. BECKHAM, CATHERINE A. FOSTER, AND ANNIE A. STURGIS, EACH FOR THE PRO RATA SHARE OF THE AMOUNT OF $150 COVERING ALLEGED DAMAGES, INCIDENT TO THE TRAINING, OPERATION, OR MAINTENANCE OF THE ARMY DURING 1930 OR 1931, TO TOMBSTONES OR MONUMENTS STATED TO HAVE BEEN ERECTED BY JOHN C. ADAMS, DECEASED, OVER AND UPON THE GRAVES OF WILLIAM SIMPKINS ADAMS, ELIZABETH ADAMS, AND EMMA GARDNER ADAMS, WHO WERE BURIED IN A PRIVATE CEMETERY, LOCATED ON THE FORMER ESTATE OF LUCY A. CRAFFORD, ON MULBERRY ISLAND, WARWICK COUNTY, VA., THE FEE SIMPLE TITLE TO WHICH WAS TRANSFERRED JUNE 21, 1918, TO THE UNITED STATES, SUCH LANDS BEING NECESSARY FOR MILITARY USE, AND BECAME A PART OF THE FORT EUSTIS MILITARY RESERVATION.

THE ACT OF JULY 9, 1918 (40 STAT. 864), AND SIMILAR PROVISIONS OF SUBSEQUENT APPROPRIATION ACTS, APPROPRIATED FUNDS FOR THE PAYMENT OF DAMAGES TO AND LOSS OF PRIVATE PROPERTY INCIDENT TO THE TRAINING, OPERATION, OR MAINTENANCE OF THE ARMY. FUNDS ARE CURRENTLY APPROPRIATED BY THE ACT OF APRIL 9, 1935 (49 STAT. 127), AS FOLLOWS:

FOR PAYMENT OF CLAIMS NOT EXCEEDING $500 EACH IN AMOUNT FOR DAMAGES TO OR LOSS OF PRIVATE PROPERTY INCIDENT TO THE TRAINING, PRACTICE, OPERATION, OR MAINTENANCE OF THE ARMY THAT HAVE ACCRUED, OR MAY HEREAFTER ACCRUE, FROM TIME TO TIME, $10,000: PROVIDED, THAT SETTLEMENT OF SUCH CLAIMS SHALL BE MADE BY THE GENERAL ACCOUNTING OFFICE, UPON THE APPROVAL AND RECOMMENDATION OF THE SECRETARY OF WAR, WHERE THE AMOUNT OF DAMAGES HAS BEEN ASCERTAINED BY THE WAR DEPARTMENT, AND PAYMENT THEREOF WILL BE ACCEPTED BY THE OWNERS OF THE PROPERTY IN FULL SATISFACTION OF SUCH DAMAGE.

THE STATUTE PROVIDES FOR PAYMENT OF DAMAGES TO THE OWNER OF PRIVATE PROPERTY, AND FURTHER, IT MUST BE ESTABLISHED THAT SUCH DAMAGES WERE INCIDENT TO THE TRAINING, OPERATION, OR MAINTENANCE OF THE ARMY.

THE TIME AND CIRCUMSTANCES OF THE ESTABLISHMENT OF THIS PRIVATE CEMETERY, AND THE TIME OF THE BURIAL OF THE PERSONS IN WHOSE MEMORY THE MARKERS IN QUESTION WERE ERECTED, ARE NOT SHOWN. IT APPEARS SUCH PRIVATE BURIAL LOT, 52 FEET BY 7 FEET 5 INCHES, IS LOCATED ON THE NORTHEAST CORNER OF A FARM CONTAINING 357.33 ACRES PURCHASED JUNE 21, 1918, BY THE UNITED STATES FOR MILITARY PURPOSES FROM LUCY A. CRAFFORD, WIDOW, THE DESCRIPTION SHOWING A PART THEREOF KNOWN AS "WHITE HOUSE" TO HAVE DESCENDED TO HER FROM THE CARTER CRAFFORD ESTATE, AND A PART KNOWN AS "SWEET SPRINGS" TO HAVE BEEN CONVEYED TO HER BY DEED DULY RECORDED. THE DEED TO THE UNITED STATES CONTAINS NO RESERVATION WITH RESPECT TO RIGHT OF WAY OR EASEMENT OF BURIAL RIGHTS, AND IT FURTHER APPEARS THAT ALL BUT THREE GRAVES HAVE BEEN REMOVED FROM SUCH PRIVATE BURIAL GROUND. AS TO THE GRAVES REMAINING, THE ADJUTANT GENERAL ADVISED, MAY 8, 1918, THAT THEY WOULD BE CAREFULLY MARKED ON MAPS AND THAT EVERY EFFORT WOULD BE MADE TO KEEP THEM ENCLOSED AND PRESERVE THEM AS THEY THEN EXISTED. IT IS AVERRED THE CLAIMANTS ARE THE BROTHER AND SISTERS OF THE LATE JOHN C. ADAMS, AND THAT THEY WERE NAMED AS RESIDUARY LEGATEES UNDER HIS WILL, AND IT IS STATED THAT THE SAID JOHN C. ADAMS ERECTED THE MARKERS IN QUESTION ON OR ABOUT AUGUST 31, 1907, OVER AND UPON THE GRAVES OF THEIR PARENTS AND A RELATIVE, SHOWN TO BE WILLIAM SIMPKINS ADAMS, ELIZABETH ADAMS, AND EMMA GARDNER ADAMS.

OWNERSHIP OF THE DAMAGED MARKERS IS ASSERTED TO HAVE BEEN ACQUIRED UNDER THE WILL OF THE PERSON WHO ERECTED THEM. IN SABINE V. HARKNESS (4 N.H. 415), IT WAS SAID THAT THOSE ERECTING A TOMBSTONE MAY MAINTAIN AN ACTION FOR ITS INJURY; AND AFTER THEIR DEATH THE HEIRS OF HIM IN WHOSE HONOR IT WAS ERECTED MAY PROSECUTE SUCH ACTION, AND IN MITCHELL V. THORNE (134 N.Y. 536), AN ACTION BY THE HEIRS FOR AN INJURY TO THE MONUMENT OF THEIR ANCESTOR WAS SUSTAINED. (SEE ALSO BEATTY V. KURTZ, 2 PETERS 566.) THE PRINCIPLE OF THESE CASES SEEMS TO BE THAT THE BURIED BODY SHALL REMAIN UNDISTURBED AND THAT IT IS THE RIGHT AND DUTY OF THE NEXT OF KIN TO SEE THAT ITS REPOSE IS DULY PROTECTED. HOWEVER, IT WOULD ALSO APPEAR THAT THE RIGHT OF BURIAL IS NOT AN ABSOLUTE RIGHT OF PROPERTY, BUT IS A PRIVILEGE OR LICENSE TO BE ENJOYED ONLY SO LONG AS THE PLACE CONTINUES TO BE USED AS A BURIAL GROUND. THE RULE WITH RESPECT TO PUBLIC CEMETERIES IS THAT THE PRIVILEGE OR LICENSE MAY BE LEGALLY REVOKED WHENEVER PUBLIC NECESSITY SO REQUIRES AND THE RIGHTS BY REASON OF BURIAL IN A PRIVATE CEMETERY WOULD APPEAR TO BE NO DIFFERENT IN THIS CONNECTION (SEE PAGE V. SYMONDS, 63 N.H. 17; ROANOKE CEMETERY CO. V. GOODWIN, 101 VA. 605), AND IN KINCAID'S APPEAL, 66 PA. 411, 5 AM.REP. 377, IT WAS HELD THAT, IF IN THE COURSE OF TIME IT SHOULD BECOME NECESSARY TO VACATE THE GROUND AS A BURYING GROUND, ALL THAT COULD BE CLAIMED, EITHER IN LAW OR EQUITY, WOULD BE THAT HE SHOULD HAVE DUE NOTICE AND THE OPPORTUNITY OF REMOVING THE BODIES AND MONUMENTS TO SOME OTHER PLACE.)

IN THE INSTANT CASE THE LAND ON WHICH THIS PRIVATE CEMETERY WAS LOCATED WAS PURCHASED FOR MILITARY PURPOSES. THE USE OF SUCH LAND FOR MILITARY PURPOSES WAS INCONSISTENT WITH THE FURTHER USE OF ANY PART THEREOF AS A BURYING GROUND AND IT WAS THE RIGHT AND PRIVILEGE OF THE HEIRS TO REMOVE THE BODIES, AND THE MONUMENTS WHICH MARKED THE GRAVES OF THEIR ANCESTORS. THE STATED FACT THAT ALL THE GRAVES BUT THREE HAD BEEN REMOVED FROM THIS PRIVATE CEMETERY WOULD TEND TO SHOW THAT THE PRIVILEGE OF REMOVAL HAS BEEN ACCORDED TO THE HEIRS OF THOSE BURIED IN THE REMAINING GRAVES. WHILE IT APPEARS THAT JOHN C. ADAMS WAS ADVISED MAY 11, 1918, THAT EVERY EFFORT WOULD BE MADE TO PRESERVE THE GRAVES LEFT ON THE MILITARY RESERVATION, IT WAS KNOWN BY ALL CONCERNED THE PURPOSE IN ACQUIRING THE PROPERTY WAS THAT IT WAS TO BE USED FOR THE MILITARY ACTIVITIES OF THE UNITED STATES. VIEW OF THESE CIRCUMSTANCES THE FAILURE TO REMOVE THE BODIES NECESSARILY RELINQUISHED ANY RIGHT TO CARE OR PROTECTION OF MARKERS ON THE GRAVES (13 OP.ATTY.GEN. 46; UNITED STATES V. HARE, 4 SAWYER 670; FRIEDMAN V. GOODWIN, 1 MCALLISTER 148). IF THE CONDITIONS OF THE STATUTE WERE OTHERWISE MET, THIS CLAIM FOR DAMAGES IS NOT WITHIN THE PROVISIONS OF SUCH LAW.

HOWEVER, IN ADDITION, THE FACTS ARE NOT SUFFICIENT TO SHOW THAT THE ALLEGED DAMAGE WAS INCIDENT TO THE TRAINING, OPERATION, OR MAINTENANCE OF THE ARMY.