A-82338, FEBRUARY 2, 1937, 16 COMP. GEN. 715

A-82338: Feb 2, 1937

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REFUND OF RENTAL OR EXTENSION OF RENTAL PERIOD WHERE LAND OF A VETERANS' ADMINISTRATION FACILITY WAS LEASED FOR GRAZING PURPOSES FOR A TERM OF YEARS WITH A PROVISION FOR RENTAL PAYMENTS ANNUALLY IN ADVANCE. THERE IS NO AUTHORITY FOR REFUND OF THE YEARLY RENTAL PAID IN ADVANCE. THESE LEASES WERE BOTH ENTERED INTO WITH MR. THIS MONEY WAS DEPOSITED IN A FEDERAL RESERVE BANK. THE MANAGER OF THE VETERANS' ADMINISTRATION FACILITY AT SHERIDAN ADVISED "THERE IS ABSOLUTELY NOT ONE SPEAR OR SPECK OF GRASS ON THE WHOLE RESERVATION. PAYMENTS FOR THE ABOVE AMOUNTS WERE MADE JUNE 26. I HAVE BEEN COMPELLED TO DISPOSE OF MY CATTLE FOR NOT HAVING ANY FEED FOR THEM. "I WONDER IF THERE IS ANY WAY WHEREBY I MIGHT BE RELIEVED OF THIS LOSS IN WHOLE OR IN PART.

A-82338, FEBRUARY 2, 1937, 16 COMP. GEN. 715

PUBLIC LAND GRAZING LEASES - FAILURE OF GRASS YIELD - CANCELLATION OF LEASES, REFUND OF RENTAL OR EXTENSION OF RENTAL PERIOD WHERE LAND OF A VETERANS' ADMINISTRATION FACILITY WAS LEASED FOR GRAZING PURPOSES FOR A TERM OF YEARS WITH A PROVISION FOR RENTAL PAYMENTS ANNUALLY IN ADVANCE, CALCULATED ON A YEARLY BASIS, AND TERMINATION AT THE REQUEST OF EITHER PARTY AFTER THIRTY DAYS' NOTICE IN WRITING, BUT WITHOUT PROVISION FOR APPORTIONMENT OF RENTAL OR REFUND IN EVENT OF VACATION OF PREMISES BETWEEN RENT DAYS, OR ANY GUARANTY WITH RESPECT TO THE GRAZING CONDITION OF THE LAND, THERE IS NO AUTHORITY FOR REFUND OF THE YEARLY RENTAL PAID IN ADVANCE, NOTWITHSTANDING THE FAILURE OF GRASS YIELD DUE TO THE GRASSHOPPER PLAGUE AND THE DROUGHT, A NOTICE BY THE LESSEE OF SAID FAILURE PRIOR TO THE COMMENCEMENT OF THE PERIOD OF THE LEASE BEING INEFFECTIVE FOR SAID PURPOSE, NOR MAY THE EFFECTIVE DATE OF THE LEASE BE EXTENDED A YEAR AND THE RENTAL ALREADY PAID REGARDED AS APPLYING TO THE FIRST YEAR OF THE PERIOD OF SUCH EXTENSION.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, FEBRUARY 2, 1937:

THERE HAS BEEN CONSIDERED YOUR LETTER OF DECEMBER 12, 1936, AS FOLLOWS:

UNDER DATE OF MAY 14, 1936, THE VETERANS' ADMINISTRATION ENTERED INTO TWO LEASES FOR THE PERIOD JULY 1, 1936, TO AND INCLUDING JUNE 30, 1939, FOR THE RENTAL OF LAND ON THE RESERVATION OF THE VETERANS' ADMINISTRATION FACILITY, SHERIDAN, WYOMING, FOR GRAZING PURPOSES.

LEASE VAR-435 COVERS 1,520 ACRES AT 20 CENTS PER ACRE PER YEAR. LEASE VAR-436 COVERS 3,634 ACRES AT 19 CENTS PER ACRE PER YEAR. THESE LEASES WERE BOTH ENTERED INTO WITH MR. H. W. FRYBERGER OF SHERIDAN, WYOMING. BOTH LEASES CONTAIN A CLAUSE WHEREBY EITHER PARTY MAY CANCEL ON THIRTY DAYS'S WRITTEN NOTICE.

ON JUNE 26, 1936, MR. FRYBERGER PAID A RENTAL OF $304.00 COVERING THE FIRST YEAR'S RENTAL FOR THE 1,520 ACRES UNDER VAR-435 AND $690.46 COVERING THE 3,634 ACRES UNDER VAR-436. THIS MONEY WAS DEPOSITED IN A FEDERAL RESERVE BANK, DENVER, COLORADO, ON JULY 2, 1936. DEPOSIT HAS BEEN MADE TO THE CREDIT OF MISCELLANEOUS RECEIPTS SYMBOL 0319, CERTIFICATE OF DEPOSIT NO. 13-16, ACCOUNT OF G. F. ALLEN, SYMBOL 11575.

ON JULY 1, 1936, THE EFFECTIVE DATE OF THE LEASES, THE MANAGER OF THE VETERANS' ADMINISTRATION FACILITY AT SHERIDAN ADVISED "THERE IS ABSOLUTELY NOT ONE SPEAR OR SPECK OF GRASS ON THE WHOLE RESERVATION, DUE TO THE GRASSHOPPER PLAGUE PRIMARILY, AND THE DROUGHT SECONDARILY.'

UNDER DATE OF JUNE 26, 1936, MR. FRYBERGER WROTE THE MANAGER AS FOLLOWS:

"I AM WRITING YOU REGARDING CONTRACT NO. VAR-435 FOR ONE THOUSAND FIVE HUNDRED AND TWENTY ACRES OF PASTURE AMOUNT $304.00, ALSO CONTRACT NO. VAR- 436 FOR THREE THOUSAND SIX HUNDRED AND THIRTY-FOUR ACRES OF PASTURE, AMOUNT $690.46. PAYMENTS FOR THE ABOVE AMOUNTS WERE MADE JUNE 26, 1936.

"AT PRESENT, DUE TO EXTREME DROUGHT AND MILLIONS OF HOPPERS AND OTHER INSECTS, THE GRASS HAS BEEN DESTROYED. I HAVE BEEN COMPELLED TO DISPOSE OF MY CATTLE FOR NOT HAVING ANY FEED FOR THEM.

"I WONDER IF THERE IS ANY WAY WHEREBY I MIGHT BE RELIEVED OF THIS LOSS IN WHOLE OR IN PART. AT PRESENT IT IS A TOTAL LOSS.'

YOUR DECISION IS REQUESTED ON THE FOLLOWING QUESTIONS:

1. IN VIEW OF YOUR DECISION OF JULY 14, 1936, A-76499, MAY THESE LEASES BE CANCELED ON THIRTY DAYS' NOTICE OR SHALL THEY BE SUBJECT TO CANCELATION ONLY AT THE END OF THE FIRST RENTAL PERIOD, WHICH IS JUNE 30, 1937, AND FOR WHICH PAYMENTS HAVE BEEN MADE?

2. IF THE LEASES ARE CANCELED, AND SINCE MR. FRYBERGER HAS NOT RECEIVED ANY BENEFIT WHATSOEVER FOR THE MONEY WHICH HE HAS PAID, MAY THE ENTIRE AMOUNT BE REFUNDED TO HIM? IF NOT, MAY ANY AMOUNT BE REFUNDED HIM AND IF SO, HOW MUCH?

3. IF NOTHING CAN BE REFUNDED MR. FRYBERGER AND SINCE HE HAS RECEIVED NO BENEFIT FOR THE MONIES PAID BY HIM, WOULD IT BE PERMISSIBLE TO EXTEND THE EFFECTIVE DATES OF THESE LEASES TO JULY 1, 1937, AND MAKING THEM RUN FOR A THREE-YEAR PERIOD AND HAVE THEM EXPIRING ON JUNE 30, 1940, AND ALLOWING THE RENTALS PAID BY HIM ON JUNE 26, 1936, TO APPLY FOR THE PERIOD JULY 1, 1937, TO JUNE 30, 1938?

BOTH LEASES PROVIDE THAT "RENTAL SHALL BE PAID ANNUALLY IN ADVANCE, CALCULATED ON A YEARLY BASIS.' ALSO, BOTH LEASES CONTAIN PROVISIONS FOR TERMINATION "AT THE REQUEST OF EITHER PARTY AFTER 30 (THIRTY) DAYS' NOTICE IN WRITING," BUT THERE IS NOTHING IN EITHER LEASE PROVIDING FOR THE APPORTIONMENT OF THE RENTAL OR FOR REFUND OF ANY PART OF THE RENTAL IN THE EVENT OF VACATION OF THE PREMISES BETWEEN RENT DAYS. WHILE IT IS STATED THAT THE LESSEE, ON JUNE 26 1936 (ON WHICH DAY IT IS REPORTED THE RENTAL WAS PAID TO THE GOVERNMENT), INFORMED THE MANAGER OF THE FACILITY THAT HE HAD TO DISPOSE OF HIS CATTLE BECAUSE THE DROUGHT AND INSECTS HAD DESTROYED THE GRASS, SUCH NOTICE COULD NOT SERVE AS A TERMINATION NOTICE BECAUSE THE LEASE HAD NOT YET BEGUN TO RUN. THAT IS TO SAY, THERE COULD BE NO TERMINATION OF A THING UNTIL IT HAD EXISTENCE. MOREOVER, NEITHER OF THE LEASES CONTAINS ANY GUARANTY WITH RESPECT TO THE GRAZING CONDITION OF THE LAND. CONSEQUENTLY, THE RISK OF THE PREMISES NOT BEING SUITABLE FOR THE PURPOSE FOR WHICH LEASED WAS ASSUMED BY THE LESSEE WHEN HE AGREED WITHOUT EXCEPTION OR RESERVATION TO PAY RENTAL IN ADVANCE. ACCORDINGLY, THERE IS NO AUTHORITY TO TERMINATE THE LEASES EXCEPT AS PROVIDED THEREIN, AND SINCE NEITHER LEASE PROVIDES FOR APPORTIONMENT OF THE YEARLY RENTAL, THERE IS NO AUTHORITY FOR REFUNDING ANY PART OF THE RENTAL PAID. SEE A-79023, AUGUST 20, 1936; 16 COMP. GEN. 302; 8 ID. 643. FURTHERMORE, THE RENTAL PAID HAVING BEEN COVERED INTO THE GENERAL FUND OF THE UNITED STATES TREASURY AS MISCELLANEOUS RECEIPTS UNDER THE PROVISIONS OF SECTIONS 3617 AND 3618, REVISED STATUTES, NO WITHDRAWAL FROM SAID FUND MAY BE MADE EXCEPT IN CONSEQUENCE OF AN APPROPRIATION MADE BY LAW. QUESTIONS 1 AND 2 ARE ANSWERED ACCORDINGLY.

REGARDING QUESTION 3, AS THE PREMISES WERE AND ARE STILL AVAILABLE TO THE USE OF THE LESSEE UNTIL THE EXPIRATION OF THE CURRENT FISCAL YEAR, FOR WHICH PERIOD THE RENTAL HAS BEEN PAID, THERE IS NO AUTHORITY OF LAW TO AMEND THE LEASES TO CHANGE THE EFFECTIVE DATES THEREOF AS SUGGESTED AND TO APPLY THE PAID RENTALS FOR THE PERIOD AS INDICATED.