A-87566, AUGUST 31, 1937, 17 COMP. GEN. 204

A-87566: Aug 31, 1937

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EASEMENTS - INDEFINITE PERIODS - PURCHASE WITHOUT SPECIFIC AUTHORITY PURCHASE OF AN EASEMENT GRANTED "UNTIL THE GOVERNMENT CEASES TO USE THE LAND" FOR THE PURPOSE FOR WHICH THE EASEMENT IS DESIRED. THERE IS NOTHING IN THE ALLOCATION LETTER AUTHORIZING THE USE OF THE FUNDS IN QUESTION FOR THE PURCHASE OF LAND OR INTEREST THEREIN. IN THIS RESPECT ATTENTION IS INVITED TO THE PROVISIONS OF SECTION 3736. IN THE PRESENT CASE THE EASEMENT APPEARS TO BE GRANTED "UNTIL THE GOVERNMENT CEASES TO USE THE LAND" FOR THE PURPOSE FOR WHICH THE EASEMENT WAS DESIRED. SINCE UNDER THE EMERGENCY RELIEF APPROPRIATION ACT OF 1936 NO PROVISION IS MADE FOR THE PURCHASE OF LAND. THE ACQUISITION OF SUCH EASEMENT IS PROHIBITED BY THE LAW.

A-87566, AUGUST 31, 1937, 17 COMP. GEN. 204

EASEMENTS - INDEFINITE PERIODS - PURCHASE WITHOUT SPECIFIC AUTHORITY PURCHASE OF AN EASEMENT GRANTED "UNTIL THE GOVERNMENT CEASES TO USE THE LAND" FOR THE PURPOSE FOR WHICH THE EASEMENT IS DESIRED, BEING CONSIDERED THE PURCHASE OF A PERMANENT EASEMENT IN VIEW OF THE INDEFINITE PERIOD INVOLVED, CONSTITUTES A PURCHASE OF LAND WITHIN THE PURVIEW OF SECTION 3736, REVISED STATUTES, PROHIBITING ANY LAND PURCHASE EXCEPT UNDER A LAW AUTHORIZING SAME, AND PAYMENT FOR SUCH EASEMENT MAY NOT BE MADE FROM FUNDS ALLOTTED BY THE PRESIDENT UNDER THE EMERGENCY RELIEF APPROPRIATION ACT OF 1936, WHERE NEITHER THE APPROPRIATION ACT NOR THE PRESIDENT'S PROJECT ALLOTMENT LETTER AUTHORIZES THE USE OF THE FUNDS FOR THE PURCHASE OF LAND, INTERESTS THEREIN, OR RIGHTS OF WAY AS HERE INVOLVED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF AGRICULTURE, AUGUST 31, 1937:

THERE HAS BEEN RESUBMITTED TO THIS OFFICE FOR PREAUDIT RESETTLEMENT ADMINISTRATION VOUCHER NO. LD-6647, SCHEDULE NO. LD-270, ADMINISTRATIVELY APPROVED FOR THE PAYMENT OF $10 UNDER THE APPROPRIATION ACCOUNT "EMERGENCY RELIEF, RESETTLEMENT ADMINISTRATION, FLOOD CONTROL AND OTHER CONSERVATION, 1936-37 (TRANSFER TO AGRICULTURE)," TO C. T. JAFFRAY, R. H. M. ROBINSON AND S. M. ARCHER, TRUSTEES OF MINNESOTA AND ONTARIO PAPER CO., MINNEAPOLIS, MINN., FOR AN EASEMENT ON A TRACT OF LAND IN KOOCHICHING COUNTY, MINN.

BY LETTER NO. 5158, DATED AUGUST 19, 1936, THE PRESIDENT ALLOTTED FUNDS UNDER THE EMERGENCY RELIEF APPROPRIATION ACT OF 1936, APPROVED JUNE 22, 1936, 49 STAT. 1608,"FOR THE PROSECUTION OF FEDERAL PROJECTS INVOLVING FLOOD CONTROL AND OTHER CONSERVATION WORK IN ACCORDANCE WITH THE ATTACHED SCHEDULE OF PROJECTS. * * * ALL WORK TO BE ON FEDERAL PROPERTY.' SAID LETTER AUTHORIZED THE EXPENDITURE OF $122,787 UNDER THE NORTHERN MINNESOTA PINE ISLAND DEVELOPMENT PROJECT DESCRIBED AS FOLLOWS:

RAZING OLD BUILDINGS, SEED COLLECTION, MARKING BOUNDARIES, AND TOPOGRAPHIC SURVEYS, BRIDGES, DAMS, RANGER STATIONS, WORK CAMPS, TREE AND SHRUB PLANTING, STAND IMPROVEMENT.

THERE IS NOTHING IN THE ALLOCATION LETTER AUTHORIZING THE USE OF THE FUNDS IN QUESTION FOR THE PURCHASE OF LAND OR INTEREST THEREIN, OR FOR THE ACQUISITION OF EASEMENTS ON PRIVATE PROPERTY IN CONNECTION WITH THE PROJECT HERE IN QUESTION, AND IN THIS RESPECT ATTENTION IS INVITED TO THE PROVISIONS OF SECTION 3736, REVISED STATUTES, THAT "NO LAND SHALL BE PURCHASED ON ACCOUNT OF THE UNITED STATES, EXCEPT UNDER A LAW AUTHORIZING SUCH PURCHASE.' IT HAS BEEN HELD BY THIS OFFICE THAT THE PURCHASE OF A PERMANENT RIGHT-OF-WAY OR EASEMENT OVER LAND CONSTITUTES A PURCHASE OF LAND OR INTEREST THEREIN IN CONTRAVENTION OF SAID SECTION UNLESS SPECIFICALLY AUTHORIZED BY LAW. SEE DECISIONS OF OCTOBER 13, 1928, A- 24745, AND MAY 8, 1930, A-31494.

IN THE PRESENT CASE THE EASEMENT APPEARS TO BE GRANTED "UNTIL THE GOVERNMENT CEASES TO USE THE LAND" FOR THE PURPOSE FOR WHICH THE EASEMENT WAS DESIRED, AND DUE TO ITS INDEFINITE PERIOD THE GRANT MAY BE CONSIDERED AS PERMANENT, AND SINCE UNDER THE EMERGENCY RELIEF APPROPRIATION ACT OF 1936 NO PROVISION IS MADE FOR THE PURCHASE OF LAND, INTEREST THEREIN, OR RIGHTS-OF-WAY AS INVOLVED HERE, THE ACQUISITION OF SUCH EASEMENT IS PROHIBITED BY THE LAW, SUPRA.

ACCORDINGLY, THE VOUCHER IS RETURNED WITHOUT CERTIFICATION FOR THE REASON THAT THE FUNDS SOUGHT TO BE CHARGED ARE NOT AVAILABLE FOR THE PURPOSE.