B-132527, AUG. 26, 1957

B-132527: Aug 26, 1957

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TO THE SECRETARY OF THE INTERIOR: REFERENCE IS MADE TO YOUR LETTER OF JULY 11. IS THE LESSEE OF BOTH OF THE LEASES. WHICH WERE NEGOTIATED BY THE WIND RIVER INDIAN AGENCY. THE LEASES ARE OTHERWISE DESCRIBED AS FOLLOWS: TABLE NO. TERM RENT 1295E 4/1/52 - 3/31/57 $87.50 PER ANNUM PAYABLE IN ADVANCE ON APRIL 1 FOR EACH YEAR OF TERM 930E 4/1/50 - 3/31/60 $30 PER ANNUM PAYABLE IN ADVANCE ON APRIL 1 FOR EACH YEAR OF TERM RENT UNDER LEASE 1295E IS REPORTED TO HAVE BEEN PAID BY MR. IT IS STATED THATMR. WAS DECLARED ELIGIBLE ON NOVEMBER 27. HE WAS NOTIFIED BY REGISTERED LETTER TO SELECT A FARM UNIT LISTED IN SECTION 1 OF GILA PROJECT PUBLIC ANNOUNCEMENT NO. 1. IT IS STATED THAT BECAUSE OF SUCH RELINQUISHMENT THE BUREAU ASSUMED THAT THE LESSEE INTENDED TO RELINQUISH AND ABANDON HIS INTEREST IN THE LANDS COVERED BY THE ABOVE LEASES.

B-132527, AUG. 26, 1957

TO THE SECRETARY OF THE INTERIOR:

REFERENCE IS MADE TO YOUR LETTER OF JULY 11, 1957, REQUESTING A DECISION AS TO THE PROPRIETY OF CANCELING THE TWO LEASES DESCRIBED THEREIN WITHOUT TAKING ANY FURTHER ACTION AGAINST THE LESSEE OR HIS BONDSMEN FOR COLLECTION OF THE LEASE RENTALS.

A. J. GARNER, A SETTLER ON THE RIVERTON PROJECT, WYOMING, IS THE LESSEE OF BOTH OF THE LEASES, WHICH WERE NEGOTIATED BY THE WIND RIVER INDIAN AGENCY, BUREAU OF INDIAN AFFAIRS, AND SUBSEQUENTLY TRANSFERRED TO THE BUREAU OF RECLAMATION FOR ADMINISTRATION UNDER THE PROVISIONS OF PUBLIC LAW 284, APPROVED AUGUST 15, 1953, 67 STAT. 592. THE LEASES ARE OTHERWISE DESCRIBED AS FOLLOWS:

TABLE

NO. TERM RENT 1295E 4/1/52 - 3/31/57 $87.50 PER ANNUM PAYABLE IN

ADVANCE ON APRIL 1 FOR

EACH YEAR OF TERM

930E 4/1/50 - 3/31/60 $30 PER ANNUM PAYABLE IN

ADVANCE ON APRIL 1 FOR

EACH YEAR OF TERM

RENT UNDER LEASE 1295E IS REPORTED TO HAVE BEEN PAID BY MR. GARNER AS LESSEE THROUGH THE PERIOD ENDING MARCH 31, 1955, AND THE RENT UNDER LEASE 930-E THROUGH THE PERIOD ENDING MARCH 31, 1956. IT IS STATED THATMR. GARNER APPLIED FOR AN EXCHANGE UNIT UNDER THE PROVISIONS OF PUBLIC LAW 258, APPROVED AUGUST 13, 1953, 67 STAT. 566, AND WAS DECLARED ELIGIBLE ON NOVEMBER 27, 1953; THAT ON APRIL 2, 1954, HE WAS NOTIFIED BY REGISTERED LETTER TO SELECT A FARM UNIT LISTED IN SECTION 1 OF GILA PROJECT PUBLIC ANNOUNCEMENT NO. 1, DATED JUNE 26, 1953; THAT SUBSEQUENTLY HE SELECTED AN EXCHANGE UNIT ON THE WELLTON-MOHAWK DIVISION OF THE GILA PROJECT, YUMA, ARIZONA; AND THAT AS A RESULT OF THIS ACTION HE RELINQUISHED HIS BASE FARM UNIT ON THE RIVERTON PROJECT. IT IS STATED THAT BECAUSE OF SUCH RELINQUISHMENT THE BUREAU ASSUMED THAT THE LESSEE INTENDED TO RELINQUISH AND ABANDON HIS INTEREST IN THE LANDS COVERED BY THE ABOVE LEASES. FOR THIS REASON, IT IS STATED THAT A PORTION OF THE LEASED LANDS WAS INCLUDED IN AN AMENDED FARM UNIT, THE POSSESSION OF WHICH WAS INADVERTENTLY TURNED OVER TO ANOTHER SETTLER BY THE BUREAU INCIDENT TO THE ADMINISTRATION OF THE ABOVE ACT OF AUGUST 13, 1953, AND THAT MR. GARNER IS USING THE BUREAU'S MISTAKE TO HIS ADVANTAGE. IN THIS CONNECTION IT IS STATED THAT WHILE MR. GARNER HAS BEEN REQUESTED TO EXECUTE A NOTICE OF SURRENDER AND POSSESSION TO THE SECRETARY OF THE INTERIOR FOR THE LANDS COVERED BY THE TWO LEASES HE HAS FAILED TO COOPERATE IN RELEASING THE LANDS AND HAS DEMANDED THAT HIS ASSIGNMENT OF LEASE NO. 1295E TO MR. MELVIN RIESE BE HONORED WITHOUT SECURING THE CONSENT OF THE SURETIES TO SUCH ASSIGNMENT.

AS TO THE PRESENT STATUS OF THE MATTER, IT IS STATED THAT THE LAND COVERED BY LEASE NO. 930E WAS SOLD TO MR. JOE A. DETIMORE UNDER CONTRACT NO. 14-06-617-205 DATED MARCH 26, 1956, EXECUTED UNDER AUTHORITY OF THE ACT OF JUNE 17, 1902, 32 STAT. 388, AS AMENDED AND SUPPLEMENTED, AND PARTICULARLY THE ACT OF MARCH 31, 1950, 46 STAT. 39. IT IS STATED THAT SINCE THE RENT UNDER THIS LEASE HAS BEEN PAID THROUGH MARCH 31, 1956, THERE IS NO LOSS OF REVENUE TO THE GOVERNMENT ON THIS LAND.

AS TO THE OTHER TRACT COVERED BY LEASE NO. 1295E IT IS STATED THAT MOST OF THIS LAND WAS SOLD TO MR. MELVIN RIESE (MR. GARNER'S ASSIGNEE) UNDER CONTRACT NO. 14-06-617-191, DATED JANUARY 10, 1956, WHICH CONTRACT WAS EXECUTED UNDER THE SAME STATUTORY AUTHORITY AS CONTRACT NO. 14-06-617- 205. THUS, IT IS STATED THAT SINCE THE RENT UNDER THIS LEASE WAS PAID THROUGH MARCH 31, 1955, THERE IS A LOSS OF REVENUE TO THE GOVERNMENT ON THIS LAND AT THE RATE OF $87.50 PER ANNUM FOR THE PERIOD APRIL 1, 1955, THROUGH JANUARY 9, 1956.

ATTENTION IS INVITED TO THE FACT THAT PARAGRAPH 7 OF EACH OF THE ABOVE CONTRACTS OF SALE (NOS. 14-06-617-205 AND 14-06-617-191) PROVIDES THAT IN THE EVENT THE LANDS ARE COVERED BY AN AGRICULTURAL OR GRAZING LEASE, AS OF THE DATE OF SALE, THE UNITED STATES SHALL TERMINATE THE LEASEHOLD INTEREST, IN ACCORDANCE WITH THE TERMS THEREOF, AND THE PURCHASER MAY TAKE POSSESSION ON A DATE TO BE STATED. ALSO, ATTENTION IS INVITED TO THE FACT THAT PARAGRAPH 19 OF EACH OF THE ABOVE LEASES PROVIDES THAT IF THE LESSEE FAILS TO PAY RENTS WHEN DUE OR SHALL FAIL TO COMPLY WITH OR VIOLATE ANY OF THE PROVISIONS OF THE CONTRACT, THE LEASE MAY BE DECLARED FORFEITED BY GIVING NOTICE IN ACCORDANCE WITH THE REGULATIONS AND THE OFFICER IN CHARGE MAY THEREUPON TAKE SUCH ACTION TO REPOSSESS THE PREMISES AND SUCH OTHER ACTION AS MAY BE NECESSARY TO PROTECT THE INTEREST OF THE UNITED STATES AS PROVIDED FOR BY THE REGULATIONS.

IT LONG HAS BEEN RECOGNIZED AS A GENERAL RULE, OF COURSE, THAT OFFICERS OR AGENTS OF THE GOVERNMENT ARE WITHOUT AUTHORITY TO WAIVE OR SURRENDER GRATUITOUSLY ANY VESTED RIGHT OR INTEREST ACQUIRED BY THE UNITED STATES UNDER CONTRACT, OR OTHERWISE. SEE UNITED STATES V. AMERICAN SALES COMPANY, 27 F.2D 389, AFFIRMED 32 F.2D 141, CERTIORARI DENIED 280 U.S. 574; PACIFIC HARDWARE COMPANY V. UNITED STATES, 49 C.CLS. 327; BAUSCH AND LOMB OPTICAL COMPANY V. UNITED STATES, 78 C.CLS. 584.

AS INDICATED IN YOUR MEMORANDUM, SINCE THE RENTAL UNDER LEASE NO. 930E WAS PAID THROUGH MARCH 31, 1956, AND THE LAND COVERED BY THIS LEASE WAS SOLD TO MR. DETIMORE UNDER PURCHASE CONTRACT NO. 14-06-617 205, DATED MARCH 26, 1956, MR. GARNER WOULD NOT APPEAR TO BE LIABLE TO THE UNITED STATES FOR ANY RENTAL ACCRUING UNDER THIS LEASE AFTER THE EFFECTIVE DATE OF THE SALE. 51 C.J.S. LANDLORD AND TENANT SEC. 258 (B) (2). AS TO THE LAND COVERED BY LEASE NO. 1295E, SINCE THE RENT WAS PAID ONLY THROUGH THE RENT YEAR ENDING MARCH 31, 1955, UNDER THE TERMS OF THIS LEASE THE RENT FOR THE NEW TERM BEGINNING APRIL 1, 1955, NAMELY $87.50 BECAME DUE AND PAYABLE ON THE LATTER DATE AND THE LEASE BECAME SUBJECT TO FORFEITURE UNDER PARAGRAPH 19. HOWEVER, BECAUSE OF THE SALE OF MOST OF THE LAND COVERED BY THIS LEASE UNDER CONTRACT NO. 14-06-617-191, DATED JANUARY 10,1956, IT IS DOUBTFUL WHETHER THE GOVERNMENT COULD ENFORCE COLLECTION OF THE RENT ACCRUING ON APRIL 1, 1955, UNLESS THE TENANT ENJOYED THE FULL TERM WITHOUT INTERFERENCE FROM THE GOVERNMENT OR ITS VENDEE.

ACCORDINGLY, YOU ARE ADVISED THAT ON THE BASIS OF THE FACTS AS REPORTED WE WOULD NOT BE DISPOSED TO OFFER ANY OBJECTION TO CANCELLATION OF THE LEASES WITHOUT FURTHER ACTION AGAINST THE LESSEE OR HIS BONDSMEN FOR COLLECTION OF ADDITIONAL RENTALS UNDER EITHER LEASE.