B-134242, DEC. 24, 1957

B-134242, DEC. 24, 1957

TO MR. W. M. WILSON, DISBURSING OFFICER, DEPARTMENT OF THE ARMY:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 21, 1957, FORWARDED HERE BY THE OFFICE OF THE CHIEF OF FINANCE, TRANSMITTING A VOUCHER IN THE AMOUNT OF $886 STATED IN FAVOR OF TRANS TOWNSHIP TELEPHONE COMPANY UNDER CONTRACT NO. DA-25-066-CIVENO-56-168, DATED DECEMBER 6, 1955, WITH THE REQUEST THAT AN ADVANCE DECISION BE RENDERED AS TO WHETHER PAYMENT THEREON IS AUTHORIZED.

THE AMOUNT OF THE VOUCHER REPRESENTS THE COST--- AS SPECIFICALLY AGREED IN THE CONTRACT--- OF THE RELOCATION OF CERTAIN TELEPHONE FACILITIES OWNED BY THE CONTRACTOR CORPORATION AND LOCATED WITHIN THE BOUNDARIES OF THE FORT RANDALL DAM AND RESERVOIR PROJECT, SOUTH DAKOTA. YOUR DOUBT AS TO THE PROPRIETY OF PAYMENT OF THE VOUCHER AND THE VALIDITY OF THE CONTRACT ARISES FROM THE FACT, AS REPORTED, THAT THE CONTRACTOR CORPORATION HAS APPARENTLY NO RECORD TITLE TO ANY RIGHT OF-WAY OR OTHER "COMPENSABLE PROPERTY RIGHT OR INTEREST" RELATING TO THE FACILITIES. IT IS STATED IN YOUR LETTER THAT THE TELEPHONE LINES IN QUESTION WERE CONSTRUCTED ABOUT 1910 BY INDIVIDUAL SUBSCRIBERS AND WERE CONSIDERED AS BELONGING TO THESE INDIVIDUALS. IN 1948, THE INDIVIDUAL OWNERS FORMED THE PRESENT CORPORATION, TRANS TOWNSHIP TELEPHONE COMPANY, IT BEING UNDERSTOOD THAT ALL FACILITIES WERE SURRENDERED TO THE CORPORATION BUT NO INSTRUMENT EVIDENCING THE TRANSFER BEING GIVEN.

SECTION 2 OF THE FLOOD CONTROL ACT OF 1938, 52 STAT. 1215, AS AMENDED (33 U.S.C. 701C-1), PROVIDES IN PERTINENT PART:

"* * * NOTWITHSTANDING ANY RESTRICTIONS, LIMITATIONS, OR REQUIREMENT OF PRIOR CONSENT PROVIDED BY ANY OTHER ACT, THE SECRETARY OF THE ARMY IS AUTHORIZED AND DIRECTED TO ACQUIRE IN THE NAME OF THE UNITED STATES TITLE TO ALL LANDS, EASEMENTS, AND RIGHTS-OF-WAY NECESSARY FOR ANY DAM AND RESERVOIR PROJECT OR CHANNEL IMPROVEMENT OR CHANNEL RECTIFICATION PROJECT FOR FLOOD CONTROL, WITH FUNDS HERETOFORE OR HEREAFTER APPROPRIATED OR MADE AVAILABLE FOR SUCH PROJECTS, AND STATES, POLITICAL SUBDIVISIONS THEREOF, OR OTHER RESPONSIBLE LOCAL AGENCIES, SHALL BE GRANTED AND REIMBURSED, FROM SUCH FUNDS, SUMS EQUIVALENT TO ACTUAL EXPENDITURES DEEMED REASONABLE BY THE SECRETARY OF THE ARMY AND THE CHIEF OF ENGINEERS AND MADE BY THEM IN ACQUIRING LANDS, EASEMENTS, AND RIGHTS-OF-WAY FOR ANY DAM AND RESERVOIR PROJECT, OR ANY CHANNEL IMPROVEMENT OR CHANNEL RECTIFICATION PROJECT FOR FLOOD CONTROL HERETOFORE OR HEREIN AUTHORIZED: PROVIDED, THAT NO REIMBURSEMENT SHALL BE MADE FOR ANY INDIRECT OR SPECULATIVE DAMAGES: PROVIDED FURTHER, THAT LANDS, EASEMENTS AND RIGHTS-OF-WAY SHALL INCLUDE LANDS ON WHICH DAMS, RESERVOIRS, CHANNEL IMPROVEMENTS, AND CHANNEL RECTIFICATIONS ARE LOCATED; LANDS OR FLOWAGE RIGHTS IN RESERVOIRS AND HIGHWAY, RAILWAY, AND UTILITY RELOCATION. * * *"

THE QUOTED LANGUAGE IS BELIEVED TO PROVIDE AUTHORITY FOR PAYMENT OF THE COST OF RELOCATING PUBLIC UTILITY FACILITIES ACTUALLY USED IN FURNISHING A PUBLIC SERVICE, UNDER AUTHORITY OF LAW, BY ANY NATURAL OR ARTIFICIAL PERSON POSSESSING THE POWER OF EMINENT DOMAIN, IRRESPECTIVE OF THE OWNERSHIP OF A RIGHT-OF-WAY. YOU STATE THAT THE LINES IN QUESTION HAVE BEEN IN SERVICE SINCE 1910 AND ALTHOUGH THE PRESENT CORPORATION WAS NOT CREATED UNTIL 1948, THE FORMER INDIVIDUAL OWNERS APPEAR TO HAVE CONSTITUTED A "TELEPHONE COMPANY" WITHIN THE DEFINITION OF SUCH COMPANIES IN SECTION 52.1301 OF THE SOUTH DAKOTA CODE. IT WOULD THEREFORE SEEM THAT A PRESCRIPTIVE RIGHT COULD READILY BE FOUND, IF NECESSARY.

ACCORDINGLY, PAYMENT ON THE VOUCHER, WHICH INCLUDES NO PAYMENT FOR A RIGHT-OF-WAY, IS AUTHORIZED, IF OTHERWISE CORRECT.