B-123430, AUG. 5, 1955

B-123430: Aug 5, 1955

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LYKES: REFERENCE IS MADE TO LETTER FROM YOUR ATTORNEY DATED MARCH 5. RECONSIDERATION OF THE CLAIM IS REQUESTED ON THE GROUND THAT FROM THE SETTLEMENT "IT CLEARLY APPEARS TO US THAT NO CONSIDERATION WAS GIVEN TO THE CLAIM FOR DAMAGES ARISING PRIOR TO THE EXECUTION OF THE LEASE.'. THIS STATEMENT IS NOT UNDERSTOOD. THE LEASE IN QUESTION WAS EXECUTED ON MARCH 12. THIS FACT WAS SHOWN IN THE SETTLEMENT. UPON WHICH THE SETTLEMENT WAS BASED. INDICATES THAT ITS ESTIMATE OF DAMAGES REPRESENTS THE DAMAGES THAT WERE CAUSED DURING THE PERIOD OF ITS OCCUPANCY OF THE LAND. AS POINTED OUT IN THE SETTLEMENT THE ADMINISTRATIVE REPORT WAS TO THE EFFECT THAT THE VALUE OF THE LAND PRIOR TO OCCUPANCY WAS $9.

B-123430, AUG. 5, 1955

TO MR. H. P. LYKES:

REFERENCE IS MADE TO LETTER FROM YOUR ATTORNEY DATED MARCH 5, 1955, REQUESTING RECONSIDERATION OF CERTIFICATE OF SETTLEMENT DATED NOVEMBER 3, 1954, WHICH ALLOWED THE CLAIM OF THE PEACH RIDGE REAL ESTATE COMPANY IN THE AMOUNT OF $655.41, OF WHICH SUM $460 REPRESENTS COMPENSATION FOR DAMAGE TO LAND, TIMBER AND OTHER GROWTH ON LANDS OCCUPIED BY THE DEPARTMENT OF THE ARMY UNDER LEASE NO. W-09-026-ENG 3252, DATED MARCH 12, 1945.

RECONSIDERATION OF THE CLAIM IS REQUESTED ON THE GROUND THAT FROM THE SETTLEMENT "IT CLEARLY APPEARS TO US THAT NO CONSIDERATION WAS GIVEN TO THE CLAIM FOR DAMAGES ARISING PRIOR TO THE EXECUTION OF THE LEASE.' THIS STATEMENT IS NOT UNDERSTOOD. THE LEASE IN QUESTION WAS EXECUTED ON MARCH 12, 1945, BUT COVERED THE PERIOD MARCH 15, 1942, TO FEBRUARY 11, 1947. THIS FACT WAS SHOWN IN THE SETTLEMENT.

THE REPORT OF THE DEPARTMENT OF THE ARMY, UPON WHICH THE SETTLEMENT WAS BASED, INDICATES THAT ITS ESTIMATE OF DAMAGES REPRESENTS THE DAMAGES THAT WERE CAUSED DURING THE PERIOD OF ITS OCCUPANCY OF THE LAND. AS POINTED OUT IN THE SETTLEMENT THE ADMINISTRATIVE REPORT WAS TO THE EFFECT THAT THE VALUE OF THE LAND PRIOR TO OCCUPANCY WAS $9,492, AND $9,032 SUBSEQUENT THERETO.

WITH RESPECT TO THE VARIANCE BETWEEN YOUR ESTIMATE AND THE ADMINISTRATIVE ESTIMATE OF THE DAMAGES TO THE LAND, ETC., WE DO NOT, OF COURSE, HAVE ANY FIRST-HAND KNOWLEDGE OF THE FACTUAL MATTERS INVOLVED IN THE INSTANT CASE. WHERE, AS HERE, THE FACTS INCIDENT TO A CLAIM AGAINST THE UNITED STATES ARE IN DISPUTE, IT IS THE ESTABLISHED RULE OF OUR OFFICE TO ACCEPT AS CORRECT THE FACTS AS ADMINISTRATIVELY REPORTED IN THE ABSENCE OF EVIDENCE SUFFICIENT TO OVERCOME THE PRESUMPTION OF THE CORRECTNESS THEREOF. SEE 3 COMP. GEN. 51; 16 ID. 410.

ACCORDINGLY, ON THE BASIS OF THE FACTS NOW BEFORE THIS OFFICE, THE SETTLEMENT OF NOVEMBER 3, 1954, IS SUSTAINED.