B-144496, DEC. 22, 1960

B-144496: Dec 22, 1960

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WRIGHT: REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 1. AS DAMAGES ALLEGED TO HAVE BEEN SUSTAINED BY REASON OF THE FAILURE OF THE GOVERNMENT. THE INVOLVED SITE IS COMPRISED OF APPROXIMATELY 16.36 ACRES (DESIGNATED AS TRACTS 102-1 AND 102-2) ACQUIRED IN FEE SIMPLE AND APPROXIMATELY 5.05 ACRES (DESIGNATED AS TRACTS 102 E-1 AND 102 E-4) ACQUIRED AS PERMANENT EASEMENTS. PRIOR TO THE GOVERNMENT'S ACQUISITION OF THE SITE THOSE TRACTS WERE A PART OF A LARGER COMPLETELY FENCES TRACT UNDER LEASE FROM YOU AND MRS. ALL TRACTS AND INTERESTS THEREIN EXCEPT TRACT 102 E 4 WERE ACQUIRED BY THE GOVERNMENT UNDER A DECLARATION OF TAKING FILED ON JUNE 29. THE EASEMENT OVER TRACT 102 E-4 WAS ACQUIRED UNDER DECLARATION OF TAKING FILED JANUARY 14.

B-144496, DEC. 22, 1960

TO MR. EVERETT N. WRIGHT:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 1, 1960, REQUESTING REVIEW OF SETTLEMENT OF OCTOBER 21, 1960, WHICH DISALLOWED THE CLAIM PRESENTED BY YOU, MRS. WRIGHT, AND FRED KROHN FOR $2,160.68, AS DAMAGES ALLEGED TO HAVE BEEN SUSTAINED BY REASON OF THE FAILURE OF THE GOVERNMENT, OR ITS CONTRACTOR, TO ERECT A PERIMETER FENCE ON LAND FORMERLY OWNED BY YOU AND MR. WRIGHT AND ACQUIRED BY THE UNITED STATES UNDER CONDEMNATION PROCEEDINGS FOR USE AS A MISSILE SITE.

THE INVOLVED SITE IS COMPRISED OF APPROXIMATELY 16.36 ACRES (DESIGNATED AS TRACTS 102-1 AND 102-2) ACQUIRED IN FEE SIMPLE AND APPROXIMATELY 5.05 ACRES (DESIGNATED AS TRACTS 102 E-1 AND 102 E-4) ACQUIRED AS PERMANENT EASEMENTS, TOGETHER WITH APPROXIMATELY 3.47 ACRES (DESIGNATED AS TRACTS 102 E-2 AND 102 E-3) ACQUIRED AS A PERMANENT LINE OF SIGHT EASEMENT. PRIOR TO THE GOVERNMENT'S ACQUISITION OF THE SITE THOSE TRACTS WERE A PART OF A LARGER COMPLETELY FENCES TRACT UNDER LEASE FROM YOU AND MRS. WRIGHT TO MR. KROHN ON A CROP-SHARE BASIS. ALL TRACTS AND INTERESTS THEREIN EXCEPT TRACT 102 E 4 WERE ACQUIRED BY THE GOVERNMENT UNDER A DECLARATION OF TAKING FILED ON JUNE 29, 1959. THE EASEMENT OVER TRACT 102 E-4 WAS ACQUIRED UNDER DECLARATION OF TAKING FILED JANUARY 14, 1960.

PRIOR TO THE CONDEMNATION PROCEEDINGS THE GOVERNMENT HAD INITIATED NEGOTIATIONS FOR THE PURCHASE OF THE NECESSARY LAND INTERESTS. THE ORIGINAL CONTRACT WITH YOU AND MRS. WRIGHT WAS MADE BY THE LANDS REPRESENTATIVE ON OR ABOUT APRIL 24, 1959, WHEN A SIX MONTHS RIGHT-OF ENTRY FOR CONSTRUCTION WAS GRANTED WITH RESPECT TO TRACTS 102-1, 102-2 AND 102 E-1. ON MAY 26, 1959, FOLLOWING FURTHER NEGOTIATIONS, YOU AND MRS. WRIGHT EXECUTED AN OFFER TO SELL TRACTS 102-1 AND 102-2 (NO. DA 25-066-ENG -5638) AND AN OFFER TO SELL EASEMENTS OVER TRACTS NOS. 102 E 1, 102 E-2 AND 102 E-3 (NO. DA-25-066-ENG-5639). ON OCTOBER 15, 1959, YOU AND YOUR WIFE EXECUTED AN OFFER TO SELL AN EASEMENT OVER TRACT NO. 102 E-4 (NO. DA- 25-066-5869-ENG). MR. KROHN AS LESSEE AND HIS WIFE EXECUTED CONSENTS TO IMMEDIATE POSSESSION AND USE BY THE GOVERNMENT OF THE EASEMENTS SO OFFERED. NONE OF THE DOCUMENTS EXECUTED IN CONNECTION WITH ANY OF THE PROPERTY INVOLVED CONTAINED ANY STIPULATION OR CONDITION CONCERNING FENCING.

ON FEBRUARY 19, 1959, A JOINT CLAIM WAS FILED BY YOU AND MRS. WRIGHT AND MR. KROHN FOR $2,160.68 AS DAMAGES ALLEGED TO HAVE BEEN SUSTAINED BY REASON OF THE GOVERNMENT'S FAILURE TO ERECT A PERIMETER FENCE AROUND THE MISSILE SITE "AS AGREED.' IT WAS ASSERTED THAT YOU WERE UNABLE TO PASTURE CATTLE ON THE LAND ADJACENT TO THE MISSILE SITE AND THAT YOU THEREBY SUFFERED A LOSS OF CORN LEFT BY THE PICKER AND LOSS OF FERTILIZER ON THE LAND. ON JUNE 15, 1960, MR. KROHN FILED A SUPPLEMENTAL STATEMENT WHEREIN HE ASSERTED THAT WHEN MR. CHIEF, THE LANDS REPRESENTATIVE, CONTACTED HIM CONCERNING THE RELEASE OF TENANT'S INTEREST IN THE MISSILE SITE HE REFUSED TO SIGN THE RELEASE IN THE ABSENCE OF AN UNDERSTANDING THAT A FENCE WOULD BE ERECTED BY OCTOBER 1, 1959; THAT ON THE BASIS OF SUCH AGREEMENT HE (MR. KROHN) CONTRACTED TO PURCHASE 178 HEAD OF FEEDER CATTLE FOR GRAZING ON THE LANDS OUTSIDE THE AREA ACQUIRED BY THE GOVERNMENT; AND THAT IN EXPECTATION THAT A FENCE WOULD BE CONSTRUCTED AROUND THE MISSILE PROJECT 93 HEAD OF A SHIPMENT OF 151 HEAD WERE PASTURED IN A 40-ACRE ALFALFA FIELD ADJOINING TRACT NO. 102-2 AND THE BALANCE WERE PUT IN A FEED LOT. MR. KROHN ASSERTS THAT BECAUSE OF THE GOVERNMENT'S FAILURE TO ERECT THE FENCE HE SUSTAINED A LOSS OF $887.88 REPRESENTING LOSS OF ROUGHAGE FEED FOR 151 STEERS FOR 98 DAYS AT 6 CENTS PER DAY FOR EACH STEER. HE ASSERTS FURTHER THAN HE SUFFERED A LOSS OF $1,272.80 ON ACCOUNT OF LOSS OF FERTILIZER FOR THE 98 DAY PERIOD.

MR. CHIEF ADMITS THAT DURING THE NEGOTIATIONS FOR THE SITE THE MATTER OF FENCING WAS DISCUSSED AND THAT YOU AND MR. KROHN HAD BEEN INFORMED THAT A PERMANENT PERIMETER FENCE WOULD BE INSTALLED BUT HE DENIES THAT HE MADE ANY PROMISE THAT A PERIMETER FENCE WOULD BE INSTALLED BY A SPECIFIC DATE.

IN REQUESTING REVIEW OF THE DISALLOWANCE YOU DISPUTE THE FACTS STATED BY THE ARMY CONCERNING THE DISCUSSIONS RELATING TO THE ERECTION OF THE FENCE, AND ASSERT THAT WHEN THE LANDS REPRESENTATIVE CONTACTED MR. KROHN TO OBTAIN HIS CONSENT TO THE SALE HE (MR. CHIEF) STATED THAT THE FENCE WOULD BE IN BY OCTOBER 1, 1959. IN OTHER WORDS, IT APPEARS TO BE YOUR VIEW THAT THIS AND OTHER STATEMENTS ALLEGED TO HAVE BEEN MADE BY MR. CHIEF CONCERNING THE ERECTION OF A FENCE CONSTITUTED A VALID AND BINDING CONTRACT THEREBY ENTITLING YOU AND YOUR TENANT TO DAMAGES FOR THE GOVERNMENT'S BREACH OF THE ALLEGED AGREEMENT.

IT IS THE ESTABLISHED RULE OF OUR OFFICE WHEN THERE IS A DISAGREEMENT, AS HERE, BETWEEN THE FACTS AS REPORTED BY THE ADMINISTRATIVE OFFICERS AND THOSE STATED BY THE CLAIMANT, THAT WE MUST ACCEPT THE FACTS AS ADMINISTRATIVELY REPORTED AS CONTROLLING THE DISPOSITION OF THE CLAIM IN THE ABSENCE OF EVIDENCE LEGALLY SUFFICIENT TO OVERCOME THE PRESUMPTION OF THEIR CORRECTNESS.

CONSEQUENTLY, WE HAVE NO ALTERNATIVE BUT TO ACCEPT THE STATEMENT BY THE LAND REPRESENTATIVE THAT HE MADE NO PROMISE THAT A PERIMETER FENCE WOULD BE INSTALLED BY A SPECIFIC DATE. EVEN IF SUCH AN ORAL AGREEMENT WAS MADE, AS CONTENDED BY YOU, IT COULD NOT BIND THE UNITED STATES SINCE APPLICABLE LAWS AND REGULATIONS DO NOT AUTHORIZE SUCH AGREEMENTS. NASH V. TOWNE, 72 U.S. 689; BRAWLEY V. UNITED STATES, 96 U.S. 168. GOLDSTEIN V. UNITED STATES, 79 CT.CL. 477. IN THIS PARTICULAR INSTANCE, PARAGRAPH 10 OF THE OFFER TO SELL EASEMENT AND PARAGRAPH 11 OF THE OFFER TO SELL REAL PROPERTY, WHICH OFFERS FURNISHED THE BASIS FOR AWARDS IN THE CONDEMNATION PROCEEDINGS AND WHICH OFFERS WERE CONSENTED TO BY MR. AND MRS. KROHN, SPECIFICALLY PROVIDED THAT--

"ALL TERMS AND CONDITIONS WITH RESPECT TO THIS OFFER ARE EXPRESSLY CONTAINED HEREIN AND THE VENDOR AGREES THAT NO REPRESENTATIVE OR AGENT OF THE UNITED STATES HAS MADE ANY REPRESENTATION OR PROMISE WITH RESPECT TO THIS OFFER NOT EXPRESSLY CONTAINED HEREIN.'

THUS, IN THE ABSENCE OF A PROVISION IN THE OFFERS SUCH AS CONTENDED FOR BY YOU OR OTHER VALID AGREEMENT THERE IS NO LEGAL LIABILITY ON THE UNITED STATES FOR ANY FAILURE TO CONSTRUCT A FENCE BY OCTOBER 1, 1959.

ASIDE FROM THE FOREGOING, IT IS ADMINISTRATIVELY REPORTED THAT THE LANDS REPRESENTATIVE HAD NO AUTHORITY TO ENTER INTO ANY CONTRACTUAL AGREEMENT ON BEHALF OF THE UNITED STATES. IT IS, OF COURSE, WELL SETTLED THAT SPECIFIC AUTHORITY TO BIND THE GOVERNMENT BY CONTRACT IS AN INDISPENSABLE PREREQUISITE TO AN ENFORCEABLE CONTRACT, AND ANYONE WHO LACKS AUTHORITY TO BIND THE GOVERNMENT BY EXPRESS CONTRACT CANNOT BE HELD TO HAVE DONE SO BY IMPLICATION. SEE AMERICAN STANDARD SHIP FITTINGS CORPORATION V. UNITED STATES, 226 U.S. 243. WHILE AN AGENT OF A PRIVATE INDIVIDUAL OR CONCERN ACTING WITHIN THE SCOPE OF HIS APPARENT AUTHORITY MAY BIND HIS PRINCIPAL IN INSTANCES WHERE HE HAS EXCEEDED HIS ACTUAL AUTHORITY, THE RULE IS OTHERWISE IN THE CASE OF A GOVERNMENT AGENT. ANYONE DEALING WITH THE GOVERNMENT THROUGH AN AGENT IS CHARGED WITH NOTICE OF THE ACTUAL AUTHORITY OF SUCH AGENT, AND IF THE AGENT HAS NO ACTUAL AUTHORITY, THE RULE IS THAT NO CONTRACT EXPRESS OR IMPLIED CAN BE CREATED. GAY STREET CORPORATION OF BALTIMORE V. UNITED STATES, 130 CT.CL. 341.

ACCORDINGLY, SINCE THERE IS PERCEIVED NO LEGAL BASIS FOR ALLOWANCE OF YOUR CLAIM, THE SETTLEMENT OF OCTOBER 21, 1960, IS SUSTAINED.