B-130286, FEB. 28, 1957

B-130286, FEB. 28, 1957

TO THE SECRETARY OF THE INTERIOR:

FURTHER REFERENCE IS MADE TO LETTER OF JANUARY 7, 1957, FROM THE ADMINISTRATIVE ASSISTANT SECRETARY, REQUESTING A DECISION AS TO WHETHER LAND PURCHASE CONTRACT NO. 14-06-703-699, ENTERED INTO ON JUNE 4, 1956, BETWEEN THE BUREAU OF RECLAMATION AND LAWRENCE L. HYTREK, ET UX., MAY BE REFORMED TO PROVIDE FOR AN ADDITIONAL PAYMENT OF $3,500 TO THE VENDORS AS DAMAGES FOR SEVERANCE OF THE EXISTING ELECTRIC POWER AND LIGHT SERVICE FACILITIES. PURSUANT TO AN INFORMAL REQUEST A COPY OF THE ABOVE CONTRACT TOGETHER WITH ADDITIONAL DATA AND INFORMATION WERE FORWARDED BY LETTER OF FEBRUARY 19, 1957.

THE RECORD FURNISHED SHOWS THAT AT THE TIME THE ABOVE CONTRACT WAS EXECUTED THE VENDORS' LAND WAS SUBJECT TO A PERPETUAL EASEMENT AND RIGHT- OF-WAY IN FAVOR OF THE PACIFIC POWER AND LIGHT COMPANY (FORMERLY THE MOUNTAIN STATES POWER COMPANY) FOR CONSTRUCTION MAINTENANCE AND OPERATION OF AN ELECTRIC POWER AND TRANSMISSION LINE. ELECTRIC SERVICE WAS FURNISHED TO THE VENDORS BY THE POWER COMPANY UNDER A CERTIFICATE OF CONVENIENCE ISSUED BY THE UTILITIES COMMISSION OF THE STATE OF WYOMING. THE ACTING PROJECT MANAGER REPORTS THAT UNDER SUCH CERTIFICATE THE POWER COMPANY IS OBLIGATED TO SERVE THE CUSTOMER REGARDLESS OF THE CONDITIONS BROUGHT ABOUT BY THE CONSTRUCTION OF THE GLENDO RESERVOIR.

BY THE TERMS OF THE ABOVE CONTRACT THE VENDORS, FOR A CONSIDERATION OF $15,092.75, OBLIGATED THEMSELVES TO SELL AND CONVEY BY WARRANTY DEED 248 ACRES OF THEIR LAND TOGETHER WITH A FLOWAGE EASEMENT OVER AND ACROSS 46.5 ACRES OF LAND. PARAGRAPH 12 OF THE CONTRACT RECITES THAT THE ABOVE PROPERTY IS TO BE CONVEYED TO THE UNITED STATES IN FEE SIMPLE, FREE OF LIENS AND ENCUMBRANCES, EXCEPT CERTAIN MINERAL RIGHTS AND RESERVATIONS AND ANY EXISTING RIGHTS-OF-WAY IN FAVOR OF THE PUBLIC OR THIRD PARTIES FOR ROADS, RAILROADS, TELEPHONE LINES, TRANSMISSION LINES, ETC., ACROSS THE LANDS. IT IS STATED, IN EFFECT, THAT THE PURCHASE PRICE HAS NOT BEEN PAID BECAUSE OF A MUTUAL MISTAKE. IT IS ASSERTED AND CONFIRMED BY THE PARTIES TO THE CONTRACT THAT DURING THE CONTRACT NEGOTIATIONS IT WAS ERRONEOUSLY ASSUMED BY THEM THAT THE PRESENT ELECTRIC TRANSMISSION LINES WOULD BE CONTINUED, OR, IN THE EVENT THAT THE DAM AND RESERVOIR INTERFERED WITH THE ELECTRIC SERVICE, THE TRANSMISSION LINES WOULD BE RELOCATED AT THE EXPENSE OF THE UNITED STATES. IT APPEARS THAT AT THE PRESENT TIME THE PACIFIC POWER AND LIGHT COMPANY SUPPLIES THE VENDORS WITH ELECTRIC POWER BY MEANS OF A TRANSMISSION LINE ON THE WEST SIDE OF THE GLENDO RESERVOIR AREA AND THAT BECAUSE OF THE CONSTRUCTION OF THE RESERVOIR IT WILL BE NECESSARY FOR THE POWER COMPANY TO PROVIDE A SUBMARINE CABLE TO CONTINUE ELECTRIC SERVICE TO THEM AT AN ESTIMATED COST OF $9,100. ALSO, IT APPEARS THAT THE POWER COMPANY IS WILLING TO RELINQUISH THEIR POWER RIGHTS TO THE VENDORS' FARM TO THE NIOBRARA REA. IT IS STATED THAT IN SUCH EVENT THE CONSTRUCTION COSTS INCIDENT TO SERVING THE VENDORS WITH ELECTRIC POWER WOULD BE ONLY $2,700. IT IS POINTED OUT, HOWEVER, THAT UNDER THIS ARRANGEMENT THE KILOWATT-HOUR RATE TO THE VENDORS WOULD BE INCREASED BY APPROXIMATELY 51 PERCENT AND THAT SUCH INCREASE ON THE BASIS OF THE VENDORS' PRIOR CONSUMPTION OF ELECTRIC CURRENT WOULD RESULT IN AN ANNUAL INCREASED COST OF $77.49, WHICH INCREASE COULD BE MET FOR A PERIOD OF TWELVE YEARS IF $800 IS DEPOSITED NOW AT THE CURRENT RATE OF 2 1/2 PERCENT INTEREST. IT IS REPORTED THAT IF REFORMATION OF THE CONTRACT AS REQUESTED IS AUTHORIZED THE VENDORS WOULD BE WILLING TO RELEASE THE PACIFIC LIGHT AND POWER COMPANY FROM ITS OBLIGATION TO SERVE THEIR PROPERTY UNDER THE COMPANY'S CERTIFICATION FOR THAT AREA, THEREBY RELIEVING THE UNITED STATES OF ITS OBLIGATION TO RELOCATE THAT COMPANY'S LINES.

IT IS WELL ESTABLISHED THAT THE GRANTOR OF AN EASEMENT CANNOT CHANGE THE LOCATION OF THE EASEMENT WITHOUT THE CONSENT OF THE GRANTEE. COMMONWEALTH V. MEANS AND RUSSELL IRON CO., 185 S.W.2D 960. THUS,SINCE THE HYTREKS AS GRANTORS OF THE EASEMENT ARE NOT POSSESSED OF ANY RIGHT TO COMPEL PACIFIC LIGHT AND POWER COMPANY TO RELOCATE ITS LINES AND SINCE, UNDER THE EXPRESS PROVISIONS OF PARAGRAPH 12 OF THE CONTRACT OF SALE, THE RIGHT ACQUIRED BY THE UNITED STATES TO PURCHASE THE VENDORS' LAND TOGETHER WITH A FLOWAGE EASEMENT OVER OTHER LAND IS EXPRESSLY SUBJECT TO THE POWER COMPANY'S PERPETUAL EASEMENT AND RIGHT-OF-WAY, THE GOVERNMENT IS OBLIGATED TO RELOCATE THE POWER COMPANY'S POLE LINES INUNDATED OR TO BE INUNDATED INCIDENT TO CONSTRUCTION OF THE DAM AND RESERVOIR. NORMALLY, THE GOVERNMENT WOULD NOT BE OBLIGATED TO PAY THE VENDORS FOR THE RELOCATION OR THE DESTRUCTION OF THE EASEMENT BECAUSE THEY DO NOT OWN IT, THE GOVERNMENT'S VENDORS HAVING PARTED WITH THE TITLE TO SUCH EASEMENT UNDER THE CONVEYANCE TO THE POWER COMPANY EXECUTED BY THEM ON MAY 15, 1951. TENNY TELEPHONE COMPANY V. UNITED STATES, 82 F.2D 788. ENGEL V. CATUCCI, 197 F.2D 597.

UNDER THE ARRANGEMENT NOW PROPOSED THE GOVERNMENT WILL BE RELIEVED OF ITS OBLIGATION TO RELOCATE THE POWER LINES AT A CONSIDERABLE SAVING, REPORTED AS APPROXIMATELY $5,600 WHICH, IN ITSELF, IS SUFFICIENT CONSIDERATION FOR REFORMATION OF THE CONTRACT AS PROPOSED. IN THE CIRCUMSTANCES, THIS OFFICE WOULD NOT BE REQUIRED TO OBJECT TO THE PROPOSED AMENDMENT OF THE CONTRACT SUBJECT, HOWEVER, TO THE EXECUTION OF A PROPER RELEASE EXECUTED BY THE PACIFIC POWER AND LIGHT COMPANY RELEASING THE EASEMENT ACQUIRED BY IT UNDER THE ABOVE CONVEYANCE OF RIGHT-OF-WAY EXECUTED BY THE GOVERNMENT'S VENDORS ON MAY 15, 1951, 17 AM.JUR. EASEMENTS, SEC. 135.