B-110641, AUGUST 11, 1952, 32 COMP. GEN. 83

B-110641, AUGUST 11, 1952, 32 COMP. GEN. 83

LEASES - DAMAGES - REMOVAL OF FIXTURES AND PERSONALTY - GOVERNMENT'S LIABILITY AS LESSEE UNDER A LEASE WHICH EXPRESSLY GRANTED TO THE GOVERNMENT THE RIGHT TO REBUILD, REMODEL, RECONDITION, REHABILITATE, CONVERT AND CHANGE THE LEASED PREMISES WITHOUT OBLIGATION TO RESTORE OR RECONVERT AT THE TERMINATION OF THE LEASE OR TO ACCOUNT FOR ANY OF THE ORIGINAL FIXTURES REMOVED DURING CONVERSION, THERE IS NO LEGAL LIABILITY ON THE PART OF THE GOVERNMENT AS LESSEE TO REIMBURSE THE LESSOR FOR THE VALUE OF CERTAIN FIXTURES AND PERSONAL PROPERTY ALLEGED TO HAVE BEEN REMOVED FROM THE PREMISES DURING THE GOVERNMENT'S OCCUPANCY.

COMPTROLLER GENERAL WARREN TO MARY FLEMING MAXWELL, AUGUST 11, 1952:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 3, 1952, CONCERNING YOUR CLAIM FOR $705 REPRESENTING THE VALUE OF CERTAIN FIXTURES AND PERSONAL PROPERTY ALLEGED TO HAVE BEEN REMOVED FROM THE PREMISES AT 6802 CARNEGIE AVENUE, CLEVELAND, OHIO, LEASED TO THE GOVERNMENT UNDER LEASE NUMBER HA-2504-HL- 40, DATED MAY 18, 1943, WHICH CLAIM WAS DISALLOWED BY SETTLEMENT DATED APRIL 18, 1952.

UNDER THE CITED LEASE, MR. MAXWELL AND YOU LET THE PREMISES THEREIN DESCRIBED TO THE UNITED STATES FOR A TERM OF SEVEN YEARS BEGINNING MAY 18, 1943. ON JANUARY 23, 1951, OR OVER EIGHT MONTHS AFTER THE EXPIRATION OF THE LEASE, YOU FILED THE ABOVE CLAIM IN WHICH YOU INDICATED THAT THE VARIOUS ITEMS COMPRISING YOUR CLAIM CONSISTING OF FIXTURES AND PERSONAL PROPERTY WERE REMOVED FROM THE PREMISES BY THE WORKMEN ENGAGED IN CONVERSION OF THE PREMISES FROM A ONE-FAMILY TO A THREE-FAMILY DWELLING FOR THE PURPOSE FOR WHICH LEASED. IT IS INDICATED IN THE CLAIM AS ORIGINALLY FILED THAT THERE WAS NO INVENTORY OF THE INVOLVED ITEMS MADE BY YOU PRIOR TO THE TIME THE GOVERNMENT TOOK POSSESSION OF THE PREMISES AND SO FAR AS THE RECORD SHOWS, NONE WAS MADE BY THE ADMINISTRATIVE AGENCY. NONE OF THE ITEMS OF YOUR CLAIM GENERALLY REGARDED AS PERSONAL PROPERTY ARE INCLUDED OR MADE A PART OF THE LEASE.

UNDER PARAGRAPH 4 OF THE SAID LEASE OF MAY 18, 1943, THE GOVERNMENT WAS GRANTED THE RIGHT TO ,BUILD, REBUILD, REMODEL, RECONDITION, REHABILITATE, CONVERT, CHANGE, AND ALTER THE PREMISES, AND INSTALL AND MAINTAIN ADDITIONS AND STRUCTURES THERETO, INCLUDING INTERNAL AND EXTERNAL CHANGES.' FURTHER, IT WAS GRANTED THE RIGHT TO "CHANGE THE NUMBER OF LIVING UNITS IN THE PREMISES AND ATTACH FIXTURES THERETO, AND MAKE ANY AND ALL IMPROVEMENTS THERETO.' THE RIGHTS THUS GRANTED WERE TO BE EXERCISED IN ACCORDANCE WITH PLANS AND SPECIFICATIONS SUBMITTED TO AND APPROVED IN WRITING BY YOU AS LESSOR AND IT WAS PROVIDED THAT THE GOVERNMENT MIGHT MAKE SUCH REASONABLE VARIATIONS FROM, AND MODIFICATIONS IN, SUCH PLANS AND SPECIFICATIONS ORIGINALLY APPROVED BY YOU AS THE GOVERNMENT DEEMED NECESSARY IN THE COURSE OF THE CONVERSION. ALSO, IT WAS EXPRESSLY PROVIDED THAT THE GOVERNMENT SHOULD BE UNDER NO OBLIGATION TO RESTORE OR RECONVERT THE PREMISES TO THEIR CONDITION AT THE TIME OF THE EXECUTION OF THE LEASE. NO RESERVATION IS MADE IN EITHER THE LEASE OR THE SPECIFICATIONS CONCERNING ANY OF THE ITEMS COVERED BY YOUR CLAIM, THAT IS, SUCH ITEMS WERE NOT EXCEPTED FROM THE FOREGOING RIGHTS GRANTED THE GOVERNMENT INCIDENT TO THE CONVERSION OF THE PROPERTY FOR USE BY THE GOVERNMENT.

THE RECORD SHOWS THAT PURSUANT TO THE PROVISIONS OF SAID PARAGRAPH 4 OF THE LEASE, PLANS AND SPECIFICATIONS WERE PREPARED BY THE GOVERNMENT'S REPRESENTATIVES AND APPROVED AND SIGNED BY YOU ON OR ABOUT APRIL 1, 1943. PARAGRAPHS 30, 31, 32, AND 33 OF THE SPECIFICATIONS EXPRESSLY PROVIDED FOR THE REMOVAL OF, ADDING TO, AND THE REARRANGEMENT OF PLUMBING AND HEATING FIXTURES.

IT IS ADMINISTRATIVELY REPORTED THAT ON OR ABOUT MAY 12, 1950, OR ABOUT FIVE DAYS PRIOR TO THE EXPIRATION OF THE GOVERNMENT'S TERM, THE GOVERNMENT'S MANAGER OF THE PROPERTY ACCOMPANIED YOU ON AN INSPECTION OF THE PROPERTY AND THAT YOU MADE NO REFERENCE AT THAT TIME TO THE MISSING ITEMS NOW COVERED BY YOUR CLAIM.

INSOFAR AS CONCERNS THE ITEMS IN YOUR CLAIM GENERALLY REGARDED AS FIXTURES AND A PART OF THE REALTY, THERE OF COURSE, IS NO LEGAL LIABILITY ON THE GOVERNMENT TO REIMBURSE YOU FOR ANY OF SUCH ITEMS IN VIEW OF THE EXPRESS PROVISIONS OF PARAGRAPH 4 OF THE LEASE WHICH AUTHORIZED THE GOVERNMENT TO REBUILD, REMODEL, RECONDITION, REHABILITATE, CONVERT AND CHANGE THE INVOLVED PREMISES WITH NO OBLIGATION TO RESTORE OR RECONVERT AT THE TERMINATION OF THE LEASE OR TO ACCOUNT FOR ANY OF THE ORIGINAL FIXTURES REMOVED DURING THE RECONVERSION.

WITH RESPECT TO THE ITEMS IN YOUR CLAIM GENERALLY, REGARDED AS PERSONALTY, IT IS NOT ESTABLISHED AS TO WHICH, IF ANY, OF THOSE ITEMS WERE ON THE PREMISES AT THE BEGINNING OF THE GOVERNMENT'S LEASE, OTHER THAN YOUR STATEMENT THAT SUCH WAS THE CASE. NEITHER IS THERE ANYTHING IN THE RECORD ESTABLISHING THE IDENTITY OF THE PERSONS REMOVING SAME EXCEPT YOUR STATEMENT INDICATING THAT SUCH ITEMS WERE REMOVED BY THE WORKMEN EFFECTING THE CONVERSION OF THE PREMISES. WHILE THE RECORD INDICATES THAT THERE WAS SOME PERSONAL PROPERTY IN THE BUILDING AT THE TIME THE GOVERNMENT'S REPRESENTATIVES PREPARED THE INSPECTION REPORT AND COST ESTIMATE OF CONVERSION PRIOR TO THE EFFECTIVE DATE OF THE LEASE, THERE IS NO DEFINITE INFORMATION AS TO THE AMOUNT OF SUCH PERSONAL PROPERTY.

IT IS INCUMBENT UPON A CLAIMANT TO ESTABLISH HIS CLAIM. ON THE PRESENT RECORD, THE VALIDITY OF YOUR CLAIM, INSOFAR AS IT CONCERNS THE PERSONAL PROPERTY IS AT LEAST OPEN TO DOUBT. HENCE, IT IS NOT ESTABLISHED. THE ACCOUNTING OFFICERS OF THE GOVERNMENT ARE NOT REQUIRED OR AUTHORIZED TO CERTIFY FOR PAYMENT CLAIMS OF DOUBTFUL VALIDITY. SEE LONGWELL V. UNITED STATES, 17 C.1CLS. 288; CHARLES V. UNITED STATES, 19 ID. 316.

EVEN IF IT WERE ESTABLISHED THAT THE PERSONAL PROPERTY WAS ON THE LEASED PREMISES AT THE BEGINNING OF THE GOVERNMENT'S LEASE IF SUCH PROPERTY--- AS INDICATED IN YOUR LETTERS--- WAS TAKEN BY THE WORKMEN ENGAGED IN THE CONVERSION OF THE PREMISES, SINCE YOUR CLAIM IN THAT RESPECT RESPECT IS NOT SED ON CONTRACT BUT IS ONE SOUNDING IN TORT, THERE WOULD BE NO LIABILITY THEREFOR OR AUTHORITY FOR ALLOWANCE BY THIS OFFICE FOR THE REASON THAT AT THE TIME SUCH CONVERSION WAS COMPLETED ON OR ABOUT SEPTEMBER 1, 1943, OR PRIOR TO THE DATE OF THE FEDERAL TORT CLAIMS ACT, 60 STAT. 842, THE LAW WAS WELL ESTABLISHED THAT THE UNITED STATES WAS NOT RESPONSIBLE FOR TORTS ARISING FROM THE ACTION OF ITS OFFICERS, AGENTS, OR EMPLOYEES. SEE HART V. UNITED STATES, 95 U.S. 316; LANGFORD V. UNITED STATES, 101 U.S. 341; GERMAN BANK V. UNITED STATES, 148 U.S. 573, 579; TEMPEL V. UNITED STATES, 248 U.S. 121; UNITED STATES V. HOLLAND-AMERICAN LINE, 254 U.S. 148, 153; JOURNAL AND TRIBUNE COMPANY V. UNITED STATES, 254 U.S. 581, 585.

ACCORDINGLY, AS THERE APPEARS NO LEGAL BASIS FOR PAYMENT OF YOUR CLAIM, THE SETTLEMENT OF APRIL 18, 1952, IS SUSTAINED.