B-136783 December 18, 1958

B-136783: Dec 18, 1958

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Cummings: Reference is made to your letter of June 26. Which disallowed your claim for damages for the loss of access to part of your farm because of the flooding of a road which runs in the bed of and fords Salt Lick Creek which flooding is allegedly caused by the construction and operation of the Wof Creek Dam and Reservoir Project. That by reason of the flooding you are deprived of access to schools. In support of your claim you have furnished statements of three persons to the effect that by reason of the flooding described above you have been damaged 45 to 50 percent of the value of your farm. That the waters which inundate your ford are primary flood waters which would have inundated the ford even under open river conditions.

B-136783 December 18, 1958

Mr. Ted Cummings Rowena, Kentucky

Dear Mr. Cummings:

Reference is made to your letter of June 26, 1958, requesting review of our settlement of May 27, 1958, which disallowed your claim for damages for the loss of access to part of your farm because of the flooding of a road which runs in the bed of and fords Salt Lick Creek which flooding is allegedly caused by the construction and operation of the Wof Creek Dam and Reservoir Project, Cumberland River, Kentucky.

You say that the operation of the Wolf Creek Dam and Reservoir Project has caused the road to be flooded most of the time from December to May of each year; that the flooding of the road cuts you off from most of your tillable land and your best barn; and that by reason of the flooding you are deprived of access to schools, churches, markets and related facilities. In support of your claim you have furnished statements of three persons to the effect that by reason of the flooding described above you have been damaged 45 to 50 percent of the value of your farm. You say that the value of your farm has been diminished $12,000.

The Corps of Engineers, U.S. Army, however, in a report forwarded to us states that the access road to your property has always flooded as a result of high stages of the Cumberland River; that the waters which inundate your ford are primary flood waters which would have inundated the ford even under open river conditions; that based on a five-year study period it has been determined that the periods of flooding each year have been only slightly changed; and that you have benefited from the operation of the dam due to reduction of high floods and reduction of periods of time when the ford would have been covered by more than one foot of water under open river conditions.

In requesting review of the disallowance you dispute the facts as reported by the Department of the Army and say that all the people that have lived in the vicinity before and after the dam was built could support your position as to the facts and that records kept by such persons would further prove the correctness of your allegations. You, also, say that you have knowledge that as a result of court action, parties similarlysituated to you have received substantial awards, but that you are trying to get a settlement without a law suit because you and your wife are boh sick and unable to attend court without hardship.

The rule is ell established and long followed by Government accounting officers that in the event of a disagreement between the facts as stated by a claimant and those as reported by the administrative office concerned, the administrative report must be accepted as controlling in the absence of evidence sufficient to overcome the presuption of the correctness of official records. Furthermore, where the facts, as here, are in dispute so as to require the taking of testimony, examination and cross-examination of witnesses, and the weighing of conflicting evidence, it is impractionable for the accounting officers to determine with accuracy the true merits of such claims. In such cases we are required to reject the claim leaving to claimant to seek his remedy in the courts.

Accordingly, in view of the conflict between the facts of the matter as stated by you and as reported administratively, we are required to sustain the settlement of May 27, 1958.

Very truly yours,

JOSEPH CAMPBELL Comptroller General of the United States