B-132080, JUN. 27, 1957

B-132080: Jun 27, 1957

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WAS APPROVED ON JULY 19. IN THE REPORT OF THE AIR FORCE TO THE CONGRESSIONAL COMMITTEES IT WAS INDICATED THAT THE EXPANSION OF THE AIR FORCE BASE WOULD NECESSITATE THE RELOCATION OF THE ARUNDEL LATERAL IRRIGATION CANAL AT AN ESTIMATED COST OF $25. THAT ADDITIONAL RELOCATION WORK WAS REQUIRED IN CONNECTION WITH OTHER LAND ACQUISITIONS MADE OR TO BE MADE BY THE GOVERNMENT FROM FISCAL YEAR 1955 FUNDS. INVITED ATTENTION TO THE FACT THAT FUNDS FOR THE FISCAL YEAR 1956 PORTION OF THE PROJECT WERE CONTAINED IN THAT YEAR'S MILITARY CONSTRUCTION PROGRAM FOR CASTLE AIR FORCE BASE. WAS SUGGESTED THAT THE ACTUAL CONSTRUCTION SHOULD BE COMPLETED WITHIN THE WINTER SEASON. AT WHICH TIME THE CANAL IS NOT REQUIRED TO SUPPLY IRRIGATION WATER.

B-132080, JUN. 27, 1957

TO THE SECRETARY OF THE ARMY:

BY SECOND INDORSEMENT OF MAY 21, 1957, RELATING TO A CLAIM OF THE MERCED IRRIGATION DISTRICT, MERCED, CALIFORNIA, FOR $20,158.92, THE CHIEF OF ENGINEERS RECOMMENDED THAT WE AUTHORIZE THE UNITED STATES ARMY ENGINEER DISTRICT, SAN FRANCISCO, CALIFORNIA, TO ENTER INTO A STANDARD RELOCATION CONTRACT WITH THE MERCED IRRIGATION DISTRICT PROVIDING FOR CONVEYANCE OF CASEMENTS AND FOR THE WORK ALREADY PERFORMED IN CONNECTION WITH THE RELOCATION OF THE ARUNDEL LATERAL CANAL.

THE RECORD SHOWS THAT A PROPOSED ACQUISITION OF APPROXIMATELY 66.295 ACRES OF LAND FOR EXPANSION OF THE CASTLE AIR FORCE BASE, CALIFORNIA, WAS APPROVED ON JULY 19, 1955, BY THE HOUSE OF REPRESENTATIVES COMMITTEE ON ARMED SERVICES AND ON AUGUST 17, 1955, BY THE SENATE COMMITTEE ON ARMED SERVICES. IN THE REPORT OF THE AIR FORCE TO THE CONGRESSIONAL COMMITTEES IT WAS INDICATED THAT THE EXPANSION OF THE AIR FORCE BASE WOULD NECESSITATE THE RELOCATION OF THE ARUNDEL LATERAL IRRIGATION CANAL AT AN ESTIMATED COST OF $25,000. IT APPEARS, HOWEVER, THAT ADDITIONAL RELOCATION WORK WAS REQUIRED IN CONNECTION WITH OTHER LAND ACQUISITIONS MADE OR TO BE MADE BY THE GOVERNMENT FROM FISCAL YEAR 1955 FUNDS.

ON SEPTEMBER 22, 1955, THE AIR FORCE INSTALLATIONS REPRESENTATIVE AT SAN FRANCISCO, CALIFORNIA, ADVISED THE DIVISION ENGINEER, CORPS OF ENGINEERS, UNITED STATES ARMY, SAN FRANCISCO, CALIFORNIA, THAT HIS OFFICE HAD RECEIVED APPROVAL FROM HEADQUARTERS, USAF, FOR RELOCATION OF THE ARUNDEL CANAL AT CASTLE AIR FORCE BASE, AND INVITED ATTENTION TO THE FACT THAT FUNDS FOR THE FISCAL YEAR 1956 PORTION OF THE PROJECT WERE CONTAINED IN THAT YEAR'S MILITARY CONSTRUCTION PROGRAM FOR CASTLE AIR FORCE BASE. WAS SUGGESTED THAT THE ACTUAL CONSTRUCTION SHOULD BE COMPLETED WITHIN THE WINTER SEASON, AT WHICH TIME THE CANAL IS NOT REQUIRED TO SUPPLY IRRIGATION WATER, AND THE DIVISION ENGINEER WAS REQUESTED TO "TAKE EVERY ACTION FEASIBLE AT THIS TIME, SHORT OF ACTUAL INITIATION OF THE PROJECT BY THE MERCED IRRIGATION DISTRICT, TO PROCEED WITH ADMINISTRATIVE ACTIONS WHICH WOULD LEAD TO THE RELOCATION OF THE ARUNDEL CANAL UPON THE RECEIPT OF FY-56 REAL ESTATE AND APPLICABLE FUNDS.'

THE CONTRACTING OFFICER HAS REPORTED THAT, BASED ON THESE INSTRUCTIONS AND THE APPROVAL OF THE PROPOSED RELOCATION, A SERIES OF CONFERENCES WERE HELD WITH MERCED IRRIGATION DISTRICT. THE PURPOSE OF THESE MEETINGS WAS TO ACQUAINT MERCED IRRIGATION DISTRICT OFFICIALS WITH THE INTENTION OF THE GOVERNMENT TO ACQUIRE ADDITIONAL REAL ESTATE AND TO DETERMINE THE CAPABILITY OF THE DISTRICT TO RELOCATE A PORTION OF THE CANAL. THE MERCED IRRIGATION DISTRICT FURNISHED COST ESTIMATES IN DECEMBER 1955 AND PROCEEDED TO MOVE THE CANAL WITHOUT A CONTRACT DURING THE MONTH OF FEBRUARY 1956.

AT THAT TIME IT BECAME EVIDENT TO MERCED IRRIGATION DISTRICT OFFICIALS THAT A CONTRACT COULD NOT BE NEGOTIATED UNTIL AFTER MARCH 1, THE DATE ON WHICH IT WAS REQUIRED TO COMMENCE FURNISHING IRRIGATION WATER TO ITS CUSTOMERS. THEY REALIZED THAT ANY FURTHER DELAY IN PERFORMING THE RELOCATION WORK WOULD PLACE IN JEOPARDY THE FULFILLMENT OF THE DISTRICT'S OBLIGATIONS TO ITS CUSTOMERS AND THAT IF THEY REFUSED TO RELOCATE THE CANAL DURING THE IRRIGATION SEASON THEY MIGHT BE CRITICIZED FOR DELAYING THE NATIONAL DEFENSE EFFORT.

THE CONTRACTING OFFICER HAS INDICATED THAT FUNDS WERE MADE AVAILABLE BY CONSTRUCTION DIRECTIVE NO. 7 DATED MAY 25, 1956. IT IS STATED IN HIS REPORT THAT, HAD THE CANAL NOT BEEN RELOCATED, THE CONSTRUCTION OF CRITICAL ITEMS WOULD HAVE BEEN DELAYED SEVERAL MONTHS; AND THAT, HAD THE GOVERNMENT BEEN REQUIRED TO RELOCATE THE CANAL AFTER MARCH 1 AND IN SUCH A MANNER THAT THERE WOULD BE NO INTERFERENCE WITH THE FLOW OF IRRIGATION WATERS, THE COST OF THE RELOCATION WOULD HAVE BEEN CONSIDERABLY GREATER THAN THE CLAIM NOW BEING MADE BY THE MERCED IRRIGATION DISTRICT. THE CONTRACTING OFFICER FURTHER STATED THAT THE CLAIM IN THE AMOUNT OF $20,158.92 HAS BEEN APPROVED BY THE DISTRICT ENGINEER AS BEING A FAIR AND REASONABLE COST FOR THE ACCOMPLISHED WORK.

THE CHIEF OF ENGINEERS EXPRESSES THE OPINION THAT THE FACTS OF THE CASE DEFINE AN IMPLIED CONTRACT. OF COURSE, THE COURTS HAVE MADE A DISTINCTION BETWEEN A CONTRACT IMPLIED IN LAW AND ONE IMPLIED IN FACT SO FAR AS THE QUESTION OF RECOVERY AGAINST THE UNITED STATES IS CONCERNED. SEE HICKMAN V. UNITED STATES, 135 F.SUPP. 919. THUS, IN ORDER TO ESTABLISH LIABILITY ON THE PART OF THE GOVERNMENT IT MUST BE SHOWN THAT A CONTRACT AROSE OUT OF FACTS FROM WHICH CONSENT MAY BE INFERRED. THE DIFFICULTY IN THE PRESENT CASE IS THAT, WHEREAS THE GOVERNMENT DESIRED THE PERFORMANCE OF THE PARTICULAR WORK, THE MERCED IRRIGATION DISTRICT WAS APPARENTLY ON NOTICE OF THE FACT THAT THE GOVERNMENT OFFICIALS INVOLVED WERE IN NO POSITION TO MAKE ANY DEFINITE COMMITMENTS IN THE MATTER UNTIL SUCH TIME AS THERE HAD BEEN RECEIVED THE NECESSARY APPROVAL FOR THE USE OF THE FISCAL YEAR 1955 FUNDS.

HOWEVER, THERE APPEARS TO HAVE BEEN NO QUESTION AS TO THE NECESSITY FOR THE PERFORMANCE OF THE PARTICULAR WORK AND IT IS EVIDENT THAT THE MERCED IRRIGATION DISTRICT PERFORMED THE WORK SOLELY IN ANTICIPATION OF THE TAKING AND ACTUAL OCCUPATION BY THE GOVERNMENT OF THE LANDS OCCUPIED BY THE CANAL AND THE PAYMENT OF COMPENSATION THEREFOR WHEN THE NECESSARY FISCAL YEAR 1956 AIR FORCE FUNDS WERE ALLOCATED TO THE CORPS OF ENGINEERS. IT IS ALSO APPARENT THAT THE NECESSARY DETAILS OF THE PROJECT WERE FULLY DISCUSSED IN THE MEETINGS BETWEEN THE GOVERNMENT OFFICIALS AND THE OFFICIALS OF THE IRRIGATION DISTRICT AND THAT, WHILE THE AMOUNT OF COMPENSATION HAD NOT BEEN AGREED UPON, IT WAS NEVER CONTEMPLATED THAT THE IRRIGATION DISTRICT WOULD PERFORM SUCH WORK WITHOUT EXPECTING PAYMENT OF REASONABLE COMPENSATION FROM THE GOVERNMENT.

IN THE CIRCUMSTANCES, AND CONSIDERING THAT THE MERCED IRRIGATION DISTRICT HAD, ACCORDING TO THE REPORT OF THE CLOSING ATTORNEY, REAL ESTATE DIVISION, SAN FRANCISCO DISTRICT, A PERPETUAL ESTATE DIVISION, SAN FRANCISCO DISTRICT, A PERPETUAL EASEMENT IN THE LANDS ACQUIRED BY THE GOVERNMENT, AND A RIGHT TO JUST COMPENSATION FOR THE EXTINGUISHMENT OF ITS RIGHTS, AND SINCE THE COST OF RELOCATING THE CANAL WOULD APPEAR TO BE A PROPER ELEMENT OF COMPENSATION, WE WOULD NOT OBJECT TO PAYMENT OF THE CLAIMED AMOUNT OF $20,158.92 AS FULL OR PARTIAL COMPENSATION FOR THE RELEASE BY THE IRRIGATION DISTRICT OF ALL ITS RIGHTS AND EASEMENTS AFFECTING THE LANDS INVOLVED.