B-134854 January 29, 1958

B-134854: Jan 29, 1958

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The claimants allege that the flooding was caused by the closing of the Dam spillway by personnel of the Corps of Engineers causing the water backing on to claimants' land. The record discloses that the claimants were two of six owners of the land and that the land was leased to and operated by the claimants during the 1956 crop season. The option agreemtn gave the United States one month from the date thereof to accept the option and the option was accepted by the United States on May 23. A warranty deed conveying the property to the United States was executed by the claimants (together with the other owners) on June 6. The 90 days notice to vacate was given the claimants by the Government on August 2.

B-134854 January 29, 1958

Honorable John L. McClellan, Chairman Committee on Government Operations United States Senate

Dear Mr. Chairman:

A letter dated January 8, 1958, from Mr. W.E. O'Brien, Professional Staff Member of your Committee, requests, in effect, that we review the settlement dated October 16, 1957, of our Claims Division, which disallowed a claim by Mr. W.R. Cooley and Mr. Carvel Cooley, Springfield, South Dakota, for $10,591.13 for damages to land and crops caused by water from the Gavins Point Dam flooding their land in February and March, 1956, and part of the land during the growing season. The claimants allege that the flooding was caused by the closing of the Dam spillway by personnel of the Corps of Engineers causing the water backing on to claimants' land; and that the flooding prevented the production of a full crop during the 1956 crop season.

The record discloses that the claimants were two of six owners of the land and that the land was leased to and operated by the claimants during the 1956 crop season. The record also discloses that subsequent to the alleged flooding of the land in February and March, 1956, the United States and the owners of the land entered into an option for Purchase of Land Contract" (contract No. BA-25-066-CIVENG-56-484), on April 26, 1956; whereby the owners agreed to convey the land in question (together with other adjoining lands) to the United States for $262,500 payable as soon as the United States accepted the option and had an opportunity to complete certain other acts not pertinent here. The option agreemtn gave the United States one month from the date thereof to accept the option and the option was accepted by the United States on May 23, 1956.

A warranty deed conveying the property to the United States was executed by the claimants (together with the other owners) on June 6, 1956. The option contract and the warranty deed both provided that the vendors could occupy and farm the property until February 27, 1957, but that such right could be revoked by the United States at any time after August 1, 1956, upon 90 days written notice. Also, under the terms of the sale, the vendors reserved the right to harvest, on or before February 28, 1957, all the crops to be grown on the land. The 90 days notice to vacate was given the claimants by the Government on August 2, 1956.

The record discloses that the crops allegedly damaged were planted in May 1956, subsequent to the execution of the option agreement but prior to the execution of the deed conveying the land to the United States. It is noted from statements made by the claimants in their claim that some of the crops may have been planted subsequent to the date of the acceptance of the option by the United States, that is, May 23, 1956. It appears from the administrative report that the claimants know the ground was too wet for planting and did so for the purpose of establishing the basis for making a claim, which they feared would be lost if no attempts were made to farm the land. The Division Engineer's Office in a report dated August 22, 1957, addressed to the Chief of Engineers, advised that it is impossible to ascertain "how much of the claimed damage, if any, resulted from flooding in February and March 1956, or by reason of later raises in the water level during the growing season or other factors' and recommeded that the claim be disallowed.

Our Claims Division in its disallowance of October 16, 1957, indicated, in effect--as far as the merits of the claim are concerned--that any damages to the land must be considered as having been merged in the settlement made for the land under the option contract. It is stated further in the Claims settlement that in any event:

"* * * even if the matter otherwise was proper for consideration now, it is well settled that neither the administrative nor the accounting officers of the Government are authorized, in the absence of express statutory provision therefore, to settle unliquidated claims for damages under situations such as reported here. Wm. Cramp and Sons v. United States, 216 U.S. 494; Charles v. United States, 19 C. Cls. 316."

Although the claim was for damages to land and crops from flooding in February and March, 1956, and during the growing season, it appears from Mr. O'Brien's letter that the flooding for which damages currently are being claimed is the flooding which occurred prior to Government ownership (that is, only the flooding which occurred in February and March 1956) and, hence, that the damages are, in effect, independent of the contract of sale. If that be the case there appears to be two possible theories upon which the claimants might predicate their claim for damages. They are, first, that the United States, or its agents by causing the spillway to be closed, committed a tort upon the claimants, that is, wrongfully infringed a private and personal right belonging to them (see Mills v. United States, 46 Fed. 738, 747-748; or second, it might be contended that the flooding constituted a taking of private property for which, under the Fifth amendment of the Constitution, an implied promise arose to pay just compensation. In either case we would have no authority on the record before us to allow the claim for the reasons hereinafter set forth.

No jurisdiction is conferred on our Office with respect to tort claims in any amount arising in any Federal agency other than the General Accounting Office. See United States v. St. Louis Clay Produce Co., 68 F. Supp. 902. Title 28 United States Code section 2672, confers upon the head of each Federal agency, or his designee for that purpose, authority to settle tort claims of $1,000 is vested exclusively in the courts. See section 1346(b); Title 28, United States Code and also section 1331, Title 28, United States Code.

As to the recovery of just compensation for a "taking" of the property, the ascertainment of just compensation for private property taken for public use has been held to be a judicial not an administrative function and no power exists in an administrative agency of the Government to declare what just compensation shall be. American-Hawaiian Steamship Co. v. United States, 124 F. Supp. 378, certiorari denied 350 U.S. 863.

Since the claim involved here appears to be either one sounding intort, as to which we have no jurisdiction to award damages. (if damages were justified), or is based upon just compensation for a "taking" of private property, the amount of which is not agreed upon and the determination of which is a function of the courts, we would not be warranted in allowing any part of the instant claim.

Section 223(b), Title 31, United States Code, authorizes the Secretary of the Army (or designee) to settle claims against the United States not in excess of $1,000 for damages to property, real or personal, caused by military or civilian personnel of that Department while acting within the scope of their employment and further provides that the Secretary of the Army may report such claims as exceed $1,000 to Congress for its consideration. While it may be that a report could have been made to the Congress under such provision, the Corps of Engineers, as indicated above, did not consider the claim was meritorious, that the amount claimed as damages necessarily resulted from the flooding in February and March 1956, and recommeded the claim be disallowed. We assume the claim was accordingly not recommeded by the Department of the Army to Congress for payment.

Sincerely yours,

JOSEPH CAMPBELL Comptroller General of the United States