B-135208, FEB. 27, 1958

B-135208: Feb 27, 1958

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

TO L AND L BUILDERS CORPORATION: REFERENCE IS MADE TO LETTER OF JANUARY 27. - WAS ACQUIRED BY YOUR FIRM BY DEED DATED APRIL 27. THAT WHILE ORIGINALLY YOUR CLAIM WAS ASSERTED FOR THE PERIOD BEGINNING MAY 1. IT IS ADMINISTRATIVELY REPORTED THAT THE QUONSET HUTS PRESENTLY ON THE SITE WERE NOT CONSTRUCTED UNTIL JULY 1954. SINCE IT IS ADMITTED THAT THE HUTS WERE CONSTRUCTED WITHOUT YOUR CONSENT THE ABOVE DATE OF CONSTRUCTION MAY BE REGARDED AS THE BEGINNING OF THE TRESPASS. THE GOVERNMENT HAD NO NOTICE OF THE TRESPASS FROM YOU UNTIL THE DISTRICT ENGINEER WAS NOTIFIED OF SAME BY YOUR LETTER OF DECEMBER 27. DA-95-507-ENG-1044) FOR THE SITE WAS EXECUTED WITH YOUR CONCERN FOR A FIVE-YEAR TERM BEGINNING MAY 1.

B-135208, FEB. 27, 1958

TO L AND L BUILDERS CORPORATION:

REFERENCE IS MADE TO LETTER OF JANUARY 27, 1958, WITH ENCLOSURES, FROM YOUR ATTORNEY, REQUESTING REVIEW OF SETTLEMENT OF NOVEMBER 26, 1957, WHICH DISALLOWED YOUR CLAIM FOR $850 AS RENTAL FOR THE SITE OCCUPIED BY GUNSITE NO. 12, ANCHORAGE, ALASKA, FOR THE PERIOD MAY 1, 1951, THROUGH APRIL 30, 1957.

THE RECORD SHOWS THAT THE INVOLVED SITE--- COMPRISING APPROXIMATELY 0.67 ACRES--- WAS ACQUIRED BY YOUR FIRM BY DEED DATED APRIL 27, 1951, RECORDED ON THE SAME DATE, AND THAT WHILE ORIGINALLY YOUR CLAIM WAS ASSERTED FOR THE PERIOD BEGINNING MAY 1, 1951, AND ENDING APRIL 30, 1957, IT IS ADMINISTRATIVELY REPORTED THAT THE QUONSET HUTS PRESENTLY ON THE SITE WERE NOT CONSTRUCTED UNTIL JULY 1954. SINCE IT IS ADMITTED THAT THE HUTS WERE CONSTRUCTED WITHOUT YOUR CONSENT THE ABOVE DATE OF CONSTRUCTION MAY BE REGARDED AS THE BEGINNING OF THE TRESPASS. SO FAR AS THE RECORD SHOWS, HOWEVER, THE GOVERNMENT HAD NO NOTICE OF THE TRESPASS FROM YOU UNTIL THE DISTRICT ENGINEER WAS NOTIFIED OF SAME BY YOUR LETTER OF DECEMBER 27, 1956. THEREAFTER, A LEASE (NO. DA-95-507-ENG-1044) FOR THE SITE WAS EXECUTED WITH YOUR CONCERN FOR A FIVE-YEAR TERM BEGINNING MAY 1, 1957, AT AN ANNUAL RENTAL OF $300. AS A RESULT OF A CONFERENCE ON AUGUST 13, 1957, ATTENDED BY YOUR REPRESENTATIVE AND STAFF MEMBERS OF THE OFFICE OF THE DISTRICT ENGINEER, YOU NOTIFIED THAT OFFICE BY LETTER OF THE SAME DATE OF A REVISION OF YOUR CLAIM TO COVER THE PERIOD FROM JULY 1, 1954, THROUGH APRIL 30, 1957, ONLY.

THE DISALLOWANCE OF YOUR CLAIM WAS BASED ON THE GENERAL RULE THAT IN THE ABSENCE OF CIRCUMSTANCES SUFFICIENT TO ESTABLISH THE RELATIONSHIP OF LANDLORD AND TENANT, THERE CAN BE NO RECOVERY FOR USE AND OCCUPANCY FOR LAND UNDER AN IMPLIED CONTRACT TO PAY RENT, AND THAT WHERE THE CIRCUMSTANCES ARE INCONSISTENT WITH THE EXISTENCE OF A CONTRACT AND ARE SUCH AS TO REBUT AN IMPLIED PROMISE TO PAY RENT, AN ACTION FOR USE AND OCCUPATION WILL NOT LIE. IN SUPPORT OF THE REQUEST FOR REVIEW YOUR ATTORNEY HAS SUBMITTED TWO AFFIDAVITS, ONE BY A FORMER EMPLOYEE TO THE EFFECT THAT THERE WAS A GOVERNMENT-OWNED HUT ON THE PROPERTY PRIOR TO OCTOBER 1, 1953, AND THE OTHER BY ANOTHER EMPLOYEE TO THE EFFECT THAT THERE WAS A GOVERNMENT-OWNED HUT ON THE PROPERTY PRIOR TO JULY 1, 1954. IN CONCLUSION YOUR ATTORNEY ASSERTS THAT IN HIS VIEW IT IS NOT INCUMBENT UPON YOUR FIRM TO ESTABLISH "THE STATE OF MIND" OF THE ARMY AS THERE CAN BE NO PRESUMPTION THAT THE OWNERS OF THE PROPERTY INTENDED TO ALLOW THE GOVERNMENT TO OCCUPY THE LAND WITHOUT REIMBURSEMENT THEREFOR.

FROM THE TIME THE ARMY WAS NOTIFIED BY YOUR LETTER OF DECEMBER 27, 1956, THAT IT WAS OCCUPYING YOUR LAND, AND ELECTED TO STAY UNDER NO CLAIM OF RIGHT ADVERSE TO YOUR COMPANY, THE GOVERNMENT BECAME A TENANT AT WILL OR SUFFERANCE UNDER AN IMPLIED CONTRACT TO PAY A REASONABLE RENTAL FOR USE AND OCCUPATION. THE SETTLEMENT OF NOVEMBER 26, 1957, WILL BE MODIFIED ACCORDINGLY AND INSTRUCTIONS ARE BEING ISSUED TODAY FOR ALLOWANCE OF $102.50, REPRESENTING RENTAL FOR THE PERIOD BEGINNING DECEMBER 27, 1956, AND ENDING APRIL 30, 1957.

AS TO THE OCCUPANCY PRIOR TO DECEMBER 27, 1956, THERE IS NOTHING IN THE RECORD ESTABLISHING THAT THE ARMY'S OCCUPANCY WAS WITH THE KNOWLEDGE OR RECOGNITION OF YOUR OWNERSHIP, OR WAS OTHERWISE THAN TORTIOUS. THERE IS NO SHOWING HERE THAT AT THE TIME THE HUTS WERE CONSTRUCTED THERE WAS ANY RECOGNITION BY THE GOVERNMENT OR ANY OF ITS OFFICERS OR AGENTS OF YOUR OWNERSHIP OR THAT ANY APPROPRIATION WAS BEING MADE OF YOUR PROPERTY. FAR AS THE RECORD SHOWS, AT NO POINT IN THE TRANSACTION PRIOR TO THE EXECUTION OF THE LEASE IS THERE ANY SUGGESTION OF AN EXPRESS PROMISE TO PAY FOR YOUR LAND OR ANY EVIDENCE OF AN IMPLIED CONTRACT TO PAY THEREFOR. ON THE CONTRARY, THE RECORD INDICATES THAT THE GOVERNMENT, THROUGH ITS AGENTS, PROCEEDED AS THOUGH IT WERE ACTING ONLY IN THE MANAGEMENT OF ITS OWN PROPERTY AND THE EXERCISE OF ITS OWN RIGHTS AND WITHOUT ANY TRESPASS UPON YOUR RIGHTS. CERTAINLY, A CONTRACT MAY NOT BE IMPLIED IN FACT WHERE THE FACTS ARE INCONSISTENT WITH ITS EXISTENCE OR AGAINST THE DECLARATION OF THE PARTY TO BE CHARGED. ALLIANCE ASSURANCE CO. LTD. V. UNITED STATES, 146 F.SUPP. 118. THUS, IT APPEARS THAT THE ONLY THEORY UPON WHICH A RECOVERY MAY BE HAD FOR THE PERIOD OF OCCUPANCY PRIOR TO THE LEASE IS THAT THE UNITED STATES OR ITS AGENTS BY THE ERECTION OF THE HUTS ON THE LAND WITHOUT YOUR CONSENT COMMITTED A TORT, THAT IS, WRONGFULLY INFRINGED UPON YOUR LAND.

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 PRODUCTS CO., 68 F.SUPP. 902. TITLE 28 U.S.C. SECTION 2672, CONFERS UPON THE HEAD OF EACH FEDERAL AGENCY, OR HIS DESIGNEE FOR THAT PURPOSE, AUTHORITY TO SETTLE TORT CLAIMS OF $1,000 OR LESS.

SINCE YOUR CLAIM FOR THE PERIOD PRIOR TO DECEMBER 27, 1956, APPEARS TO BE ONE SOUNDING IN TORT AS TO WHICH WE HAVE NO JURISDICTION TO AWARD DAMAGES, EVEN THOUGH DAMAGES MIGHT BE JUSTIFIED, WE WOULD NOT BE AUTHORIZED TO ALLOW ANY PART OF THE RENT CLAIMED FOR SUCH PERIOD, AND THE DISALLOWANCE THEREOF IS SUSTAINED.

A CHECK FOR THE AMOUNT HEREIN AUTHORIZED FOR PAYMENT WILL ISSUE IN THE USUAL COURSE OF BUSINESS.