B-124546, SEP. 27, 1955

B-124546: Sep 27, 1955

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TO THE SECRETARY OF THE INTERIOR: REFERENCE IS MADE TO LETTER OF JUNE 30. THE REQUEST IS MADE BECAUSE OF AN ALLEGED MUTUAL MISTAKE OF THE PARTIES. IT IS STATED THAT THE PAYMENT ENTITLED HIM TO A BASE ALLOTMENT OF 280 ACRE-FEET OF PROJECT WATER DURING THE BALANCE OF THE CALENDAR YEAR 1952 PLUS 140 ACRE- FEET OF WATER WITHOUT ADDITIONAL CHARGE FOR ESTABLISHMENT OF A NEW CROP ON RAW LAND. BECAUSE THE FARM UNIT WAS NOT UNDER IRRIGATION PRIOR TO JULY 1. IT IS NOTED. THE HOMESTEAD UNIT WAS ALLOWED MR. THE EXTENSION WAS GRANTED AND RENEWED AND HE MOVED ONTO THE PROPERTY ON AUGUST 21. IT IS STATED THAT THE FIRST IRRIGATION WATER WAS DELIVERED TO THE TRACT ON DECEMBER 2. LINDSEY MADE APPLICATION FOR IRRIGATION WATER TO BE USED DURING THE CALENDAR YEAR 1953 PURSUANT TO GILA PROJECT PUBLIC NOTICE NO. 10 AND WAS CHARGED AND PAID $537.84 AS ONE- HALF OF A FULL YEAR'S SERVICE ON HIS ENTIRE IRRIGABLE ACREAGE OF 149.4 ACRES.

B-124546, SEP. 27, 1955

TO THE SECRETARY OF THE INTERIOR:

REFERENCE IS MADE TO LETTER OF JUNE 30, 1955, FROM THE ADMINISTRATIVE ASSISTANT SECRETARY, REQUESTING AUTHORITY TO REFORM ON APPLICATION FOR WATER SERVICE DURING DEVELOPMENT PERIOD, YUMA MESA DIVISION, GILA PROJECT, BEARING NO. 80, EXECUTED BY ALVIN LINDSEY AND APPROVED APRIL 20, 1953, BY THE SUPERINTENDENT OF THE GILA PROJECT, BUREAU OF RECLAMATION. THE REQUEST IS MADE BECAUSE OF AN ALLEGED MUTUAL MISTAKE OF THE PARTIES.

IT APPEARS THAT ON JULY 25, 1952, MR. LINDSEY RECEIVED AN AWARD, PURSUANT TO GILA PROJECT PUBLIC NOTICE NO. 9, OF A FARM UNIT TRACT DESCRIBED IN THE LETTER AS CONTAINING 149.4 IRRIGABLE ACRES, AND THAT ON THE SAME DATE HE EXECUTED AND DELIVERED A WATER SERVICE APPLICATION FOR THE YEAR 1952, TOGETHER WITH HIS CHECK FOR $252 REPRESENTING A CHARGE OF $7.20 PER ACRE ON 35 ACRES, REQUIRED AS A CONDITION PRECEDENT TO HIS RECEIPT OF A CERTIFICATE OF QUALIFICATION TO MAKE ENTRY ON THE TRACT. IT IS STATED THAT THE PAYMENT ENTITLED HIM TO A BASE ALLOTMENT OF 280 ACRE-FEET OF PROJECT WATER DURING THE BALANCE OF THE CALENDAR YEAR 1952 PLUS 140 ACRE- FEET OF WATER WITHOUT ADDITIONAL CHARGE FOR ESTABLISHMENT OF A NEW CROP ON RAW LAND, BECAUSE THE FARM UNIT WAS NOT UNDER IRRIGATION PRIOR TO JULY 1, 1952--- A FACT WHICH, IT IS NOTED, DID NOT APPEAR ON THE FACE OF THE APPLICATION.

THE HOMESTEAD UNIT WAS ALLOWED MR. LINDSEY BY THE BUREAU OF LAND MANAGEMENT ON AUGUST 22, 1952, AND SHORTLY THEREAFTER HE MADE APPLICATION FOR A SIX MONTHS' EXTENSION OF TIME TO ESTABLISH HIS RESIDENCE. THE EXTENSION WAS GRANTED AND RENEWED AND HE MOVED ONTO THE PROPERTY ON AUGUST 21, 1953, AND ESTABLISHED HIS RESIDENCE. HOWEVER, IT IS STATED THAT THE FIRST IRRIGATION WATER WAS DELIVERED TO THE TRACT ON DECEMBER 2, 1952, AND BY THE END OF THE CALENDAR YEAR ONLY 20.8 ACRE-FEET OF WATER HAD BEEN USED.

IT FURTHER APPEARS THAT ON APRIL 20, 1953, MR. LINDSEY MADE APPLICATION FOR IRRIGATION WATER TO BE USED DURING THE CALENDAR YEAR 1953 PURSUANT TO GILA PROJECT PUBLIC NOTICE NO. 10 AND WAS CHARGED AND PAID $537.84 AS ONE- HALF OF A FULL YEAR'S SERVICE ON HIS ENTIRE IRRIGABLE ACREAGE OF 149.4 ACRES. THAT PAYMENT WAS MADE AS FOLLOWS: $304.56 CASH AND A CREDIT OF $233.28--- AUTHORIZED BY THE PROVISIONS OF THE PUBLIC NOTICE--- FOR UNUSED WATER PREVIOUSLY PAID FOR ON JULY 25, 1952. ON JULY 23, 1953, HE PAID THE SECOND ONE-HALF OF THE MINIMUM CHARGE ON THE 149.4 ACRES, AMOUNTING TO $537.84. SECTION 2 (A) (II) (REFERRED TO IN THE ADMINISTRATIVE ASSISTANT SECRETARY'S LETTER AS SECTION 20 (A) (II) ( OF THE GILA PROJECT PUBLIC NOTICE NO. 10 PROVIDED THAT THE APPLICANT SHOULD PAY THE PRESCRIBED CHARGE IN ADVANCE FOR "EACH ACRE OF LAND FOR WHICH WATER SERVICE IS REQUESTED DURING 1953," THERE BEING FIXED BY SECTION 2 SEVERAL RATES OF CHARGE, THE APPLICABILITY OF WHICH DEPENDED UPON THE TYPE OF IRRIGATION USED, THE TIME WHEN THE PARTICULAR ACREAGE HAD BEEN BROUGHT UNDER IRRIGATION, AND THE DATE IT HAD FIRST BEEN IRRIGATED UNDER THE PROJECT. ON THE BASIS OF THE CHARGE MADE FOR 1953, MR. LINDSEY WAS ENTITLED TO RECEIVE 1,792.8 (149.4 TIMES 12) ACRE-FEET OF WATER DURING THE YEAR BUT IT IS STATED THAT ONLY 1,243.4 ACRE-FEET WERE DELIVERED TO HIM DURING 1953.

ON JANUARY 15, 1954, MR. LINDSEY WROTE THE DISTRICT MANAGER OF THE BUREAU OF RECLAMATION AT YUMA CALLING ATTENTION TO THE FACT THAT HE HAD PURCHASED WATER FOR 1953 FOR THE ENTIRE TRACT OF 149.4 ACRES, ALTHOUGH HE DID NOT INTEND TO IRRIGATE THE ENTIRE ACREAGE DURING THAT YEAR. HE STATES THAT HE MADE THE PURCHASE THROUGH A MISUNDERSTANDING, IN THAT HE WAS UNDER THE IMPRESSION THAT HE HAD TO PURCHASE WATER FOR ALL THE ACREAGE HE WAS HOMESTEADING. HE ALSO STATES THAT PRIOR TO JULY 1, 1953, HE WAS FARMING BUT 75 ACRES AND AFTER THAT DATE HE PLANTED AN ADDITIONAL 55 ACRES, AND HE ASKS THAT HE BE CREDITED WITH THE OVERPAYMENT RESULTING FROM THE MISUNDERSTANDING.

IT IS STATED THAT THE PROJECTS ENGINEER OF THE YUMA PROJECTS OFFICE OF THE BUREAU OF RECLAMATION SUBSTANTIALLY VERIFIED MR. LINDSEY'S CLAIM AS TO THE AMOUNT OF LAND SUBJUGATED DURING 1953, AND FURTHER REPORTED THAT MR. LINDSEY WAS ONE OF THE NEWER HOMESTEADERS ON THE PROJECT AND WAS UNDOUBTEDLY NOT FAMILIAR WITH THE TERMS OF THE PUBLIC NOTICE AND THE VARIOUS CONDITIONS UNDER WHICH HE COULD PURCHASE WATER FOR HIS LAND. THE PROJECTS ENGINEER FURTHER STATES THAT THE YUMA OFFICE PERSONNEL WERE NOT INFORMED OF MR. LINDSEY'S PLANS AT THE TIME HE APPLIED FOR 1953 WATER AND, CONSEQUENTLY, NO SUGGESTION WAS MADE TO HIM THAT HE PURCHASE WATER FOR A LESSER AMOUNT THAN HIS ENTIRE ACREAGE.

THE PROJECTS ENGINEER EXPRESSES THE DESIRE, IF PROPER, TO AMEND MR. LINDSEY'S 1953 WATER SERVICE APPLICATION TO COVER 75 ACRES IRRIGATED PRIOR TO JULY 1, 1953, AND 55 ACRES NOT IRRIGATED PRIOR TO THAT DATE, MAKING A TOTAL OF 130 ACRES UNDER IRRIGATION PRIOR TO THE END OF THE YEAR. STATES THAT SUCH AMENDMENT WOULD RESULT IN THE CHARGE FOR 1953 SERVICE HAVING BEEN OVERPAID BY $324.28, WHICH WOULD BE CREDITED ON THE 1954 WATER BILL.

THE PROJECTS ENGINEER FURTHER REPORTS THAT MEMBERS OF HIS STAFF HAVE ALWAYS MADE AN ATTEMPT TO EXPLAIN FULLY ALL OF THE VARIOUS CONDITIONS COVERED BY THE PUBLIC NOTICES AND CONTRACTS BUT THAT IT IS POSSIBLE, DUE TO THE PRESS OF OTHER BUSINESS, THE CLERKS IN THE WATER OFFICE FAILED TO EXPLAIN TO MR. LINDSEY ALL OF THE CIRCUMSTANCES THAT COULD BE ENCOUNTERED BY A WATER USER IN HIS POSITION.

IT IS STATED IN THE ADMINISTRATIVE ASSISTANT SECRETARY'S LETTER THAT MR. LINDSEY WOULD NOT HAVE EXECUTED AN APPLICATION FOR WATER FOR THE ENTIRE ACREAGE EXCEPT FOR THE MISTAKE REFERRED TO, WHICH RESULTED FROM THE FAILURE OF THE WATER OFFICE TO EXPLAIN CLEARLY AND FULLY TO HIM HIS RIGHTS AND RESPONSIBILITIES, AND THAT THE UNITED STATES WOULD NOT HAVE APPROVED HIS APPLICATION EXCEPT IN THE MISTAKEN BELIEF THAT HE INTENDED TO IRRIGATE ALL HIS ACREAGE.

FOR THE REASONS STATED, IT IS ADMINISTRATIVELY RECOMMENDED THAT THE 1953 WATER APPLICATION BE AMENDED SO AS TO COVER 130 ACRES INSTEAD OF THE FULL ACREAGE OF 149.4, AND THAT MR. LINDSEY BE ALLOWED A CREDIT OF $324.28 IN HIS WATER ACCOUNT.

IN SUPPORT OF THIS RECOMMENDATION, IT IS SUGGESTED THAT THE ENTRYMAN'S WRITTEN APPLICATION FOR WATER FOR 1953, AND APPROVAL THEREOF BY THE PROPER OFFICIALS, CREATED A CONTRACT "REQUIRING THE ENTRYMAN TO PAY THE CHARGES MENTIONED IN THE APPLICATION; " THAT GRANTING OF THE REQUEST FOR CREDIT WOULD CONSTITUTE AN ALTERATION OF THE CONTRACT TO THE DETRIMENT OF THE UNITED STATES; BUT THAT, SINCE MR. LINDSEY EXECUTED THE APPLICATION UNDER THE MISTAKEN BELIEF THAT HE WAS REQUIRED TO APPLY FOR IRRIGATION OF HIS ENTIRE ACREAGE, AND THE BUREAU APPROVED IT UNDER THE MISTAKEN BELIEF THAT HE INTENDED ACTUALLY TO IRRIGATE HIS ENTIRE ACREAGE, THERE WAS A MUTUAL MISTAKE WHICH WOULD JUSTIFY REFORMATION OF THE CONTRACT.

GENERALLY, WHEN A CONTRACT CONTAINS A MUTUAL MISTAKE OF FACT AND IN THAT RESPECT DOES NOT REPRESENT THE TRUE AGREEMENT OF THE PARTIES, SUCH MISTAKE IS GROUND FOR REFORMING THE WRITTEN INSTRUMENT IF IT CAN BE ESTABLISHED WHAT THE CONTRACT WAS OR WOULD HAVE BEEN BUT FOR THE MISTAKE. 20 COMP. GEN. 533, AND CASES THERE CITED. HOWEVER, SUCH RULE DOES NOT APPLY IN THE CASE OF A UNILATERAL MISTAKE. MOREOVER THE COURTS HAVE HELD THAT A MISTAKE AS TO AN EXISTING SITUATION WHICH LEADS ONE OR BOTH OF THE PARTIES TO ENTER INTO A CONTRACT WHICH THEY WOULD NOT HAVE ENTERED INTO HAD THEY BEEN ADVISED OF THE ACTUAL FACTS WILL NOT JUSTIFY REFORMATION, AND THAT THE QUESTION IS NOT WHAT THE PARTIES WOULD HAVE INTENDED HAD THEY KNOWN BETTER BUT, RATHER, WHETHER THE INSTRUMENT EXPRESSES THEIR INTENTION AT THE TIME, INFORMED AS THEY WERE. 26 COMP. GEN. 744, AND CASES THERE CITED.

TESTED BY THESE PRINCIPLES, THE SITUATION PRESENTED DOES NOT APPEAR TO BE ONE IN WHICH THE PROPOSED REFORMATION WOULD BE JUSTIFIED.

HOWEVER, EXAMINATION OF THE PERTINENT DOCUMENTS LEADS US TO THE CONCLUSION THAT THE CONTRACT FORMER BY THE APPLICATION AND ITS APPROVAL WAS BY NO MEANS SO DEFINITE AND CERTAIN AS IS ASSUMED IN THE SUBMISSION, AND THAT CREDIT OR REFUND OF THE AMOUNT RECOMMENDED MAY PROPERLY BE MADE ON THE BASIS OF CORRECTION OF THE CHARGE WITHOUT VIOLATION OF ANY CONTRACTUAL PROVISION.

THE ACTUAL LANGUAGE OF THE ONLY PORTION OF THE APPLICATION CONTAINING ANY REFERENCE TO AREA OR ACREAGE IS AS FOLLOWS:

"1. IN ACCORDANCE WITH AND SUBJECT TO THE TERMS, CONDITIONS AND PROVISIONS OF PUBLIC NOTICE NO. 9 AND 10, DATED JAN. 21, 1952 AND DEC. 31, 1952, APPLICATION IS HEREBY MADE TO THE UNITED STATES OF AMERICA, HEREIN STYLED UNITED STATES, BY THE UNDERSIGNED, HEREIN STYLED APPLICANT, FOR IRRIGATION WATER UNDER THE ABOVE-NAMED DIVISION AND PROJECT, DURING THE CALENDAR YEAR 1953 AND THEREAFTER UNTIL FURTHER NOTICE SUBJECT TO THE CONDITIONS NAMED HEREIN, FOR THE IRRIGATION OF THE FOLLOWING DESCRIBED LAND, HAVING A TOTAL IRRIGABLE AREA OF 149.4 ACRES:

"FARM UNIT "A," NE 1/4 OF SECTION 9, TOWNSHIP 10 SOUTH, RANGE 23 WEST, G AND RB AND M"

ON ITS FACE IT IS AT LEAST DOUBTFUL WHETHER THIS PARAGRAPH SHOULD PROPERLY BE READ AS AN APPLICATION FOR SERVICE FOR THE ENTIRE AREA OF 149.4 ACRES. WE BELIEVE THAT THE AVERAGE CITIZEN, CONFRONTED BY THIS FORM, WITHOUT SPECIFIC INSTRUCTIONS, WOULD CONSTRUE IT AS CALLING FOR A DESCRIPTION OF THE TRACT OF LAND OWNED BY HIM, AND THE WORDS "HAVING A TOTAL IRRIGABLE AREA OF ACRES" AS REQUIRING A STATEMENT OF THE ENTIRE AREA CONTAINED IN THE TRACT. TO INSERT 130 INSTEAD OF 149.4 IN THIS SPACE, AS PROPOSED BY THE PROJECTS ENGINEER, WOULD IN FACT MAKE THE STATEMENT ERRONEOUS, UNLESS THE DESCRIPTION OF THE LAND WERE ALSO CHANGED. THE 1952 APPLICATION WAS FILLED IN WITH THE IDENTICAL WORDS AND FIGURES, BUT IT OBVIOUSLY WAS NOT CONSTRUED AS CALLING FOR IRRIGATION OF THE ENTIRE 149.4 ACRES SINCE THE CHARGES FOR THAT YEAR WERE COMPUTED ON AN AREA OF 35 ACRES. SECTION 20 (A) (1) OF PUBLIC NOTICE NO. 9 PROVIDED THAT EACH APPLICANT FOR A PUBLIC LAND FARM UNIT "MUST PAY THE MINIMUM ANNUAL WATER RENTAL CHARGE FOR NOT LESS THAN THIRTY-FIVE (35) ACRES AND, IN ADDITION, MUST PAY AT LEAST ONE-HALF OF THE MINIMUM ANNUAL WATER RENTAL CHARGE FOR ANY FULLY PREDEVELOPED LAND IN THE FARM UNIT IN EXCESS OF THIRTY-FIVE (35) ACRES.' UNDER THE FACTS INDICATED BY THE RECORD THE 1952 CHARGE WAS APPARENTLY CORRECT-- BUT ITS CORRECT ASSESSMENT WAS NECESSARILY DEPENDENT UPON TWO FACTS, NEITHER OF WHICH WAS STATED IN OR CALLED FOR BY THE APPLICATION FORM: THAT THE APPLICANT FOR WATER SERVICE WAS AN APPLICANT FOR A PUBLIC LAND FARM UNIT, AND THAT THE FARM UNIT CONTAINED NO FULLY PREDEVELOPED LAND.

SIMILARLY, PUBLIC NOTICE NO. 10 PRESCRIBED, IN SECTION 2, DIFFERENT RATES OF CHARGE FOR THE YEAR 1953 FOR LANDS IRRIGATED UNDER THE PROJECT BY GRAVITY BEFORE JULY 1, 1953, AND UNDER IRRIGATION PRIOR TO JULY 1, 1952; FOR LANDS IRRIGATED UNDER THE PROJECT BY GRAVITY BEFORE JULY 1, 1953, AND NOT UNDER IRRIGATION PRIOR TO JULY 1, 1952; AND FOR OTHER LANDS IN THE YUMA MESA UNIT NOT IRRIGATED AT ANY TIME BEFORE JULY 1, 1953, BUT RECEIVING WATER AFTER THAT DATE. YET NOWHERE IN THE APPLICATION FORM WAS ANY DISCLOSURE OF ANY OF THOSE PERTINENT FACTS CALLED FOR, OR ANY SPACE PROVIDED TO STATE THEM. ON THE APPLICATION SIGNED BY MR. LINDSEY FOR 1953, THERE APPEARS AT THE BOTTOM OF PAGE 1 THE SENTENCE--- NOT CONNECTED IN CONTEXT WITH ANY PART OF THE PRINTED FORM--- "LAND IRRIGATED AFTER JULY 1, 1952, AND IS ENTITLED TO TWELVE (12) ACRE-FEET OF WATER PER ACRE AT THE MINIMUM CHARGE.' THIS ALONE, HOWEVER, IS INSUFFICIENT TO INDICATE THE PROPER BASIS FOR CHARGE, AND EVEN THOUGH IN PARAGRAPH 7 OF THE APPLICATION THE APPLICANT AGREED TO PAY FOR THE WATER SERVICE "IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH 2 (A) (II) " (LANDS IRRIGATED BEFORE JULY 1, 1953, BUT NOT UNDER IRRIGATION PRIOR TO JULY 1, 1952), WE DO NOT FEEL THAT THE APPLICATION AS A WHOLE WOULD JUSTIFY HOLDING THE APPLICANT TO HAVE DEFINITELY REPRESENTED THAT HIS ENTIRE ACREAGE FELL WITHIN THAT CLASSIFICATION, CONTRARY TO THE ACTUAL FACTS.

ON THE RECORD IT SEEMS REASONABLY CLEAR THAT THE PROJECT OFFICIALS IN DETERMINING THE AMOUNTS TO BE CHARGED RELIED UPON INFORMATION OTHER THAN OR IN ADDITION TO THAT REQUIRED TO BE STATED IN THE APPLICATION. ACCORDINGLY, SINCE IN THIS INSTANCE THE CHARGES WERE BASED UPON OTHER THAN THE TRUE FACTS, AND OTHER THAN THOSE THAT COULD FAIRLY BE CONSIDERED TO HAVE BEEN STATED IN THE APPLICATION, WE HAVE NO OBJECTION TO CORRECTION OF THE CHARGES TO CONFORM TO THE TRUE FACTS, WHICH UNDOUBTEDLY WOULD HAVE BEEN DISCLOSED IF PROPERLY CALLED FOR BY THE APPLICATION FORM, OR IF FULL INQUIRY HAD BEEN MADE OF THE APPLICANT AT THE TIME THE APPLICATION WAS RECEIVED.