A-89713, JULY 6, 1938, 18 COMP. GEN. 8

A-89713: Jul 6, 1938

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THE REASONABLE AND ORDINARY WEAR AND TEAR CONTEMPLATED IS THAT PRESUMED TO RESULT FROM ITS REASONABLE USE FOR THE PURPOSE FOR WHICH LEASED. WHERE THE REPORTED FACTS INDICATE THAT THE ALLEGED DAMAGES WERE ONLY SUCH AS MIGHT BE PRESUMED TO RESULT FROM REASONABLE USE FOR THE PURPOSE FOR WHICH LEASED. THERE IS NO LEGAL OBLIGATION ON THE UNITED STATES TO PAY FOR THE DAMAGES CLAIMED. 1938: YOU HAVE REQUESTED REVIEW OF SETTLEMENT DATED FEBRUARY 12. THE RECORD SHOWS THAT THE PREMISES WERE LEASED FOR AND OCCUPIED BY CIVILIAN CONSERVATION CORPS COMPANY NO. 2724. - AND THAT THE PREMISES WERE OCCUPIED BY THE EMERGENCY CONSERVATION WORKS FROM NOVEMBER 10. UPON WHICH DATE THE LEASE WAS TERMINATED IN ACCORDANCE WITH NOTICE DATED AUGUST 28.

A-89713, JULY 6, 1938, 18 COMP. GEN. 8

LEASES - DAMAGES - REASONABLE USE FOR PURPOSE FOR WHICH LEASED - GOVERNMENT LIABILITY WHERE THE LEASE OF A BUILDING FOR THE USE OF A CIVILIAN CONSERVATION CORPS COMPANY PROVIDED FOR RESTORATION OF THE PREMISES TO THE SAME CONDITION AS THAT EXISTING AT THE TIME OF ENTERING UPON THE SAME, REASONABLE AND ORDINARY WEAR AND TEAR, ETC., EXCEPTED, THE REASONABLE AND ORDINARY WEAR AND TEAR CONTEMPLATED IS THAT PRESUMED TO RESULT FROM ITS REASONABLE USE FOR THE PURPOSE FOR WHICH LEASED, AND WHERE THE REPORTED FACTS INDICATE THAT THE ALLEGED DAMAGES WERE ONLY SUCH AS MIGHT BE PRESUMED TO RESULT FROM REASONABLE USE FOR THE PURPOSE FOR WHICH LEASED, THERE IS NO LEGAL OBLIGATION ON THE UNITED STATES TO PAY FOR THE DAMAGES CLAIMED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE REORGANIZED CHURCH OF JESUS CHRIST OF LATTER DAY SAINTS, JULY 6, 1938:

YOU HAVE REQUESTED REVIEW OF SETTLEMENT DATED FEBRUARY 12, 1937, WHICH DISALLOWED YOUR CLAIM FOR $117.89, FOR ALLEGED DAMAGES TO YOUR BUILDING KNOWN AS "LIBERTY HOME" LEASED TO THE UNITED STATES UNDER LEASE NO. W-5700 -QM-ECF-57, DATED SEPTEMBER 1, 1934.

THE LEASE IN QUESTION PROVIDED FOR THE USE AND OCCUPANCY OF 6 ACRES OF LAND AND A BUILDING KNOWN AS "LIBERTY HOME," ALL IN DECATUR COUNTY, IOWA, FOR THE PERIOD SEPTEMBER 1, 1934, TO AUGUST 31, 1935, WITH OPTION FOR RENEWAL TO AUGUST 31, 1940, AT A MONTHLY RENTAL OF $50. SAID LEASE PROVIDED THAT---

* * * THE GOVERNMENT, IF REQUIRED BY THE LESSOR, SHALL, BEFORE THE EXPIRATION OF THIS LEASE OR RENEWAL THEREOF, RESTORE THE PREMISES TO THE SAME CONDITION AS THAT EXISTING AT THE TIME OF ENTERING UPON THE SAME UNDER THIS LEASE, REASONABLE AND ORDINARY WEAR AND TEAR AND DAMAGES BY THE ELEMENTS OR BY CIRCUMSTANCES OVER WHICH THE GOVERNMENT HAS NO CONTROL, EXCEPTED: * * *.

THE RECORD SHOWS THAT THE PREMISES WERE LEASED FOR AND OCCUPIED BY CIVILIAN CONSERVATION CORPS COMPANY NO. 2724, KNOWN AS CAMP SES-IA-2, DURING THE PERIOD FROM SEPTEMBER 1, 1934, TO NOVEMBER 10, 1935--- THE LEASE HAVING BEEN RENEWED TO INCLUDE THE PERIOD UP TO JUNE 30, 1937--- AND THAT THE PREMISES WERE OCCUPIED BY THE EMERGENCY CONSERVATION WORKS FROM NOVEMBER 10, 1935, TO SEPTEMBER 30, 1936, UPON WHICH DATE THE LEASE WAS TERMINATED IN ACCORDANCE WITH NOTICE DATED AUGUST 28, 1936.

IN YOUR REQUEST FOR REVIEW YOU STATE AS FOLLOWS:

OUR CLAIM DOES NOT INCLUDE ITEMS WHICH FALL IN THE LINE OF ORDINARY WEAR AND USE, BUT IS FOR OBJECTS WHICH ARE VERY MUCH OUT OF THE ORDINARY AND SHOULD WE HAVE REQUESTED THAT THE PROPERTY BE PUT IN AS GOOD CONDITION AS WHEN FIRST OCCUPIED, THE CLAIM WOULD HAVE BEEN MATERIALLY LARGER. OUR CLAIM INCLUDES SUCH ITEMS AS BROKEN PLASTER IN THE CEILINGS, DUE TO SOMEONE GETTING UP IN THE ATTIC AND WALKING AROUND AND FALLING THROUGH; THE DESTRUCTION OF DOORS, DUE TO THEIR APPARENTLY BEING FASTENED SHUT AND THEN SOMEONE FROM THE OTHER SIDE SMASHING THEM DOWN TO GAIN ENTRANCE; THE SPATTERING OF INK OVER WALLS AND WOODWORK WHICH REQUIRED REFINISHING; AND THE DAMAGE TO HARDWOOD FLOORS FROM LACK OF CARE, WHICH CARE WAS ASSURED US AT THE TIME THE BUILDING WAS RENTED.

OUR CLAIM ARISES OUT OF THOSE THINGS WHICH ARE BEYOND "REASONABLE AND ORDINARY WEAR AND TEAR AND DAMAGE BY THE ELEMENTS.' THESE ITEMS WHICH WE ARE ASKING INDEMNIFICATION FOR WERE APPROVED BY THE SUPERVISING OFFICERS OF THIS AREA, AND WE FIND NO REASON WHY OUR CLAIM IS NOT IN LINE FOR PAYMENT.

ALTHOUGH YOU STATE THAT CERTAIN OF THE DAMAGE WAS DUE TO "SOMEONE GETTING UP IN THE ATTIC AND WALKING AROUND AND FALLING THROUGH" AND TO THE DESTRUCTION OF DOORS, IT IS NOTED FROM THE ITEMIZED BILL OF THE ESTIMATED REPAIRS THAT NO AMOUNT WAS INCLUDED THEREIN FOR THE REPAIR OF DOORS AND THAT THE GREATER PORTION OF THE BILL IS MADE UP OF ITEMS OF DAMAGE WHICH COULD NOT HAVE BEEN CAUSED BY SOMEONE FALLING THROUGH THE ATTIC FLOOR. HOWEVER THAT MAY BE, THE RECORD SHOWS THAT IN ACCORDANCE WITH ARMY REGULATIONS NO. 30-1430, MARCH 26, 1923, A BOARD OF OFFICERS WAS APPOINTED TO INVESTIGATE AND REPORT ALL THE FACTS PERTAINING TO THE ALLEGED DAMAGES, INCLUDING THE CAUSE AND AMOUNT THEREOF. THE SAID BOARD OF OFFICERS MADE THE INVESTIGATION AND REPORTED ITS FACTS AND FINDINGS TO THE QUARTERMASTER GENERAL AS REQUIRED. UPON CONSIDERATION OF THE REPORTED FACTS THE QUARTERMASTER GENERAL, UNDER DATE OF SEPTEMBER 8, 1936, FOUND AS FOLLOWS:

2. IT IS NOTED FROM THE EVIDENCE SUBMITTED WITH THE ATTACHED PROCEEDINGS OF A BOARD OF OFFICERS, WHICH WAS APPOINTED TO INVESTIGATE AND REPORT UPON THIS CLAIM, THAT "LIBERTY HOME" WAS, MORE OR LESS, IN A POORER STATE OF REPAIR WHEN VACATED BY CCC COMPANY 2724 THAN WHEN IT WAS ORIGINALLY OCCUPIED UNDER THIS LEASE. THE CLAIMANT IS SEEKING DAMAGES IN THE SUM OF $117.89, WHICH IS THE AMOUNT ESTIMATED TO RESTORE THE BUILDING TO THE SAME CONDITION AS THAT EXISTING AT THE TIME THE LEASE BEGAN. IT IS APPARENT THAT THE ALLEGED DAMAGES ITEMIZED IN EXHIBIT "E" ARE OF SUCH A NATURE THAT THEY MIGHT READILY BE ASCRIBED TO REASONABLE AND NORMAL USE. PAINT ON WOODWORK BEING WORN AND WALL PAPER BEING FADED OR NEEDING PATCHING CERTAINLY APPEAR TO BE RESULTS OF ORDINARY WEAR AND TEAR.

5. THIS OFFICE IS OF THE OPINION THAT THE GOVERNMENT COMMITTED NO DAMAGE OR WASTE OTHER THAN SUCH AS WAS NECESSARILY INCIDENT TO THE REASONABLE AND PROPER USE OF THE BUILDING FOR THE PURPOSE FOR WHICH IT WAS LEASED, AND THAT THE CLAIMANT HAS MADE NO ADEQUATE AFFIRMATIVE SHOWING OF FACTS UPON WHICH TO BASE A CONCLUSION THAT THE DAMAGES WERE CAUSED BY CARELESSNESS OR NEGLIGENCE RATHER THAN BEING DUE TO ORDINARY WEAR AND TEAR.

THE RECORD FURTHER SHOWS THAT UNDER DATE OF OCTOBER 13, 1936, THE REAL ESTATE CLAIMS BOARD AFTER THOROUGHLY CONSIDERING THE FACTS IN THE MATTER MADE THE FOLLOWING RECOMMENDATION:

THIS BOARD RECOMMENDS THAT THE CLAIM OF THE REORGANIZED CHURCH OF JESUS CHRIST OF LATTER DAY SAINTS, IN THE AMOUNT OF $117.89, BE DISALLOWED FOR THE FOLLOWING REASONS:

(1) THE DAMAGES ALLEGED BY THE CLAIMANT ARE CONSIDERED TO BE THE RESULT OF ORDINARY WEAR AND TEAR FROM THE NORMAL USAGE OF THE BUILDING FOR THE PURPOSE FOR WHICH IT WAS LEASED. PAINT ON WOODWORK BEING WORN AND WALL PAPER BEING FADED OR NEEDING PATCHING OBVIOUSLY MAY BE CLASSIFIED AS NORMAL DEPRECIATION WHICH IS THE RESULT OF ORDINARY WEAR AND TEAR. TAYLOR VS. CAMPBELL (108 N.Y.SUPP. 401), IT WAS HELD THAT WHATEVER DEPRECIATION OCCURS WHILE THE TENANT DOES BY HIS AFFIRMATIVE ACTS NOTHING INCONSISTENT WITH THE USUAL USE, OR DOES NOT OMIT TO DO ACTS WHICH IT IS USUAL FOR THE TENANT TO PERFORM, IS DUE TO ORDINARY REASONABLE USE AND WEAR. THE COMPTROLLER GENERAL HAS HELD (1 COMP. GEN. 277) THAT:

"WHEN A LESSOR EXECUTES A LEASE WITH ACTUAL OR PRESUMPTIVE KNOWLEDGE OF THE PURPOSE FOR WHICH THE PREMISES ARE TO BE USED AND MAKES NO THERE ARISES A CONCLUSIVE PRESUMPTION THAT HE HAS CONTEMPLATED SUCH DAMAGES AND HAS ASSUMED RESPONSIBILITY THEREFOR.

"A LEASE OF PROPERTY FOR A CAMP SITE DOES CONSTITUTE A CONSENT TO USE THE PROPERTY TO THE EXTENT AND IN THE MANNER THAT PROPERTY FOR CAMP SITES IS ORDINARILY USED AND IN SUCH USE TO ALTER AND INJURE THE PROPERTY TO THE EXTENT NECESSARY IN THE PROPER USE AND ENJOYMENT THEREFOR.'

(2) PARAGRAPH 7 OF THE LEASE PROVIDES THAT: "THE LESSOR SHALL, UNLESS HEREIN SPECIFIED TO THE CONTRARY, MAINTAIN THE SAID PREMISES IN GOOD REPAIR AND TENANTABLE CONDITION DURING THE CONTINUANCE OF THIS LEASE.' IS THE OPINION OF THIS BOARD THAT THE RENTAL RESERVED IN THIS LEASE SHOULD BE TAKEN TO COMPENSATE THE LESSOR FOR NECESSARY MINOR REPAIRS, PARTICULARLY THESE REPAIRS WHICH ARE NECESSITATED FROM NORMAL USAGE OF THE PREMISES.

(3) THE CLAIMANT HAS MADE NO ADEQUATE, AFFIRMATIVE SHOWING OF FACTS UPON WHICH TO BASE A CONCLUSION THAT THE DAMAGES WERE THE RESULT OF ANY CARELESSNESS OR NEGLIGENCE ON THE PART OF THE UNITED STATES.

IN A FURTHER REPORT OF JANUARY 13, 1938, THE QUARTERMASTER GENERAL STATED, IN PERTINENT PART, AS FOLLOWS:

3. FROM THE REPORT OF THE LOCAL BOARD OF OFFICERS WHO INVESTIGATED THIS CLAIM, THIS OFFICE IS UNABLE TO DEDUCE ANY DEFINITE OR SUBSTANTIAL EVIDENCE TO THE EFFECT THAT ELEVEN ROOMS WERE DAMAGED MORE THAN THE RESULT OF ORDINARY WEAR; NOR CAN THERE BE FOUND ANY EVIDENCE TO THE EFFECT THAT PLASTER IN THE CEILINGS WAS BROKEN DUE TO SOMEONE GOING UP INTO THE ATTIC AND WALKING AROUND AND FALLING THROUGH; NOR ANY EVIDENCE IN REGARD TO THE DESTRUCTION OF DOORS, DUE TO THEIR APPARENTLY HAVING BEEN FASTENED SHUT AND THEN SOMEONE FROM THE OTHER SIDE SMASHING THEM DOWN. ON THE CONTRARY, LT. ROBERT R. JACOBSMEYER MAKES THE STATEMENT (EXHIBIT D) THAT THE CHANGE IN THE CONDITION OF THE BUILDING, AS SHOWN IN INSPECTION REPORT OF JULY 10, 1936 (EXHIBIT E), WAS THE RESULT OF NORMAL USAGE BY THE CIVILIAN CONSERVATION CORPS.

THUS THE FACTS REPORTED INDICATE THAT THE ALLEGED DAMAGES TO THE BUILDING WERE ONLY SUCH AS MIGHT BE PRESUMED TO RESULT FROM ITS REASONABLE USE FOR THE PURPOSE FOR WHICH LEASED AND THE EVIDENCE DOES NOT SHOW THE REPORTED FACTS TO BE ERRONEOUS (3 COMP. GEN. 51; 15 ID. 241, 253). IN OTHER WORDS, THE GOVERNMENT HAVING USED THE PREMISES ONLY FOR THE PURPOSE FOR WHICH THEY WERE RENTED SUCH DAMAGES AS RESULTED WERE DUE ONLY TO WEAR AND TEAR CONTEMPLATED IN CONNECTION WITH THE LEASE.

IN VIEW OF THE FACTS HEREINBEFORE STATED AND THE LAW APPLICABLE THERETO, IT MUST BE HELD THAT THERE IS NO LEGAL OBLIGATION ON THE UNITED STATES TO PAY THE DAMAGES CLAIMED. UNITED STATES V. BOSTWICK, 94 U.S. 53; 1 COMP. GEN. 134, 276; 3 ID. 356; 4 ID. 211; 5 ID. 126; 6 ID. 562.