B-139672, JUL. 23, 1959

B-139672: Jul 23, 1959

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DEPARTMENT OF THE INTERIOR: REFERENCE IS MADE TO YOUR LETTER OF MAY 14. REPRESENTING THE VALUE OF A DOUGLAS-FIR TREE WHICH WAS REMOVED BY THE SPRINGFIELD LUMBER MILLS FROM THE CUTTING AREA DESCRIBED IN TIMBER SALES CONTRACT NO. 14-11-001/9/-92 FOR SWANSON. A VOUCHER COVERING THE PAYMENT OF THE CLAIM WAS NOT ENCLOSED WITH YOUR LETTER. YOU ARE NOT ENTITLED TO A DECISION EXCEPT AS TO A QUESTION OF LAW INVOLVED IN THE PAYMENT OF A VOUCHER PRESENTED TO YOU FOR CERTIFICATION. THE VOUCHER REQUIREMENT IN THIS INSTANCE WILL BE WAIVED WITH THE UNDERSTANDING THAT VOUCHERS WILL BE SUBMITTED IN THE FUTURE WITH REQUESTS FOR DECISIONS. THE SUM OF $195 AS DOUBLE DAMAGES FOR THE TRESPASS AS AUTHORIZED BY SECTION 105.815 OF THE OREGON REVISED STATUTES WHERE THE TRESPASS IS CASUAL OR INVOLUNTARY.

B-139672, JUL. 23, 1959

TO MR. LOU W. HATCH, AUTHORIZED CERTIFYING OFFICER, BUREAU OF LAND MANAGEMENT, DEPARTMENT OF THE INTERIOR:

REFERENCE IS MADE TO YOUR LETTER OF MAY 14, 1959, WITH ENCLOSURES, FORWARDING THE CLAIM OF THE SWANSON BROS. LUMBER CO., INC., IN THE AMOUNT OF $204.75, REPRESENTING THE VALUE OF A DOUGLAS-FIR TREE WHICH WAS REMOVED BY THE SPRINGFIELD LUMBER MILLS FROM THE CUTTING AREA DESCRIBED IN TIMBER SALES CONTRACT NO. 14-11-001/9/-92 FOR SWANSON. A VOUCHER COVERING THE PAYMENT OF THE CLAIM WAS NOT ENCLOSED WITH YOUR LETTER. AS A CERTIFYING OFFICER, YOU ARE NOT ENTITLED TO A DECISION EXCEPT AS TO A QUESTION OF LAW INVOLVED IN THE PAYMENT OF A VOUCHER PRESENTED TO YOU FOR CERTIFICATION. SEE 35 COMP. GEN. 28. HOWEVER, THE VOUCHER REQUIREMENT IN THIS INSTANCE WILL BE WAIVED WITH THE UNDERSTANDING THAT VOUCHERS WILL BE SUBMITTED IN THE FUTURE WITH REQUESTS FOR DECISIONS.

UNDER THE CONTRACT DATED MARCH 15, 1956, SWANSON PURCHASED 1,587M BOARD FEET OF DOUGLAS-FIR FOR $108,312.75, TO BE CUT BY IT FROM THE CONTRACT CUTTING AREA. HOWEVER, SOMETIME IN JULY 1956, SPRINGFIELD CUT AND REMOVED A BLOWN-DOWN TREE FROM THE CONTRACT AREA. THEREAFTER, IN MARCH 1958, THE BUREAU MADE DEMAND UPON SPRINGFIELD FOR DAMAGES ARISING OUT OF THE TRESPASS IN ACCORDANCE WITH SECTION 105.810 OF THE OREGON REVISED STATUTES, PROVIDING FOR TREBLE DAMAGES IN THE CASE OF WILFUL TRESPASS. THEREUPON, SPRINGFIELD TENDERED, AND THE BUREAU ACCEPTED, THE SUM OF $195 AS DOUBLE DAMAGES FOR THE TRESPASS AS AUTHORIZED BY SECTION 105.815 OF THE OREGON REVISED STATUTES WHERE THE TRESPASS IS CASUAL OR INVOLUNTARY. THE DAMAGES WERE COMPUTED BY DOUBLING THE APPRAISED (MARKET VALUE) STUMPAGE RATE OF $32.50 AND MULTIPLYING IT BY THE VOLUME (3 THOUSAND BOARD FEET) REMOVED IN TRESPASS. ON THE OTHER HAND, SWANSON IS CLAIMING THE VALUE OF SUCH STUMPAGE AT THE CONTRACT ESTIMATED UNIT PRICE OF $68.25 OR A TOTAL OF $204.75.

IT APPEARS THAT THE TRESPASS OCCURRED SUBSEQUENT TO THE EXECUTION OF THE TIMBER SALES CONTRACT BUT PRIOR TO THE COMMENCEMENT OF LOGGING OPERATIONS BY SWANSON. THE CONTRACT CLEARLY OBLIGATED THE GOVERNMENT TO SELL, AND SWANSON TO BUY, ALL THE TIMBER IN THE CONTRACT DESIGNATED AREA, EXCEPT THAT RESERVED TO THE UNITED STATES. HENCE, TO THE EXTENT THAT A TREE WAS REMOVED BY TRESPASS FROM THE CONTRACT AREA, THERE WAS A FAILURE OF CONSIDERATION ON ACCOUNT OF WHICH THE PURCHASER IS ENTITLED TO RELIEF. SEE B-130656, FEBRUARY 19, 1957.

HOWEVER, WE DO NOT BELIEVE THAT THE RELIEF REQUESTED BY SWANSON SHOULD BE MEASURED BY THE AMOUNT OF DAMAGES COLLECTED BY THE GOVERNMENT FROM SPRINGFIELD. AN EXACT MEASURE OF DAMAGES IS AVAILABLE FROM THE CONTRACT ITSELF, THAT IS, $68.25 PER THOUSAND BOARD FEET. THEREFORE, AND SINCE PAYMENT BASED UPON SUCH CONTRACT RATE WILL EFFECTIVELY COMPENSATE SWANSON FOR THE LOSS WHICH A FULFILLMENT OF THE CONTRACT BY THE GOVERNMENT WOULD HAVE PREVENTED, THE CLAIM IN THE AMOUNT OF $204.75 MAY BE ALLOWED IF OTHERWISE CORRECT.