B-145103, MAY 5, 1961

B-145103, MAY 5, 1961

TO LIBBY, MCNEIL AND LIBBY:

REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 8, 1961, REQUESTING RECONSIDERATION OF OUR SETTLEMENT DATED OCTOBER 12, 1960, WHICH DISALLOWED IN PART YOUR CLAIMS FOR DAMAGES SUFFERED INCIDENT TO THE INSTALLATION OF A COMMUNICATIONS CABLE BY THE U.S. ARMY THROUGH CERTAIN PINEAPPLE FIELDS OCCUPIED BY YOU.

YOU FILED CLAIMS APRIL 10, 1959, WITH THE U.S. ARMY FOR DAMAGES SUFFERED IN FIELDS 6104, 7105, 154, 5100, AND 8107. YOU CLAIMED (1) $3,484.25 FOR GROWING PLANTS DESTROYED IN FIELD 6104; (2) $2,534.00 FOR GROWING PLANTS DESTROYED IN FIELD 7105; (3) $570.15 FOR GROWING PLANTS DESTROYED AND FOR FRUIT WHICH COULD NOT BE HARVESTED BECAUSE OF AN OPEN TRENCH IN FIELD 154; (4) $1,647.10 FOR FRUIT WHICH COULD NOT BE HARVESTED BECAUSE OF AN OPEN TRENCH FROM JULY 1958 TO FEBRUARY 1959 IN FIELD 5100; AND (5) $825.00 AS REIMBURSEMENT FOR RAINSTORM DAMAGE SUFFERED IN FIELD 8107 WHERE IT WAS STATED THAT PLANTING OPERATIONS WERE DELAYED APPROXIMATELY THREE WEEKS DUE TO CABLE INSTALLATION.

YOUR CLAIMS WERE TRANSMITTED HERE ON SEPTEMBER 27, 1960, BY THE DEPARTMENT OF THE ARMY FOR DIRECT SETTLEMENT. YOU WERE ALLOWED AS RECOMMENDED BY THE DEPARTMENT OF THE ARMY (1) $3,011.85 FOR CROP DAMAGES IN FIELD 6104; (2) $2,534.00 FOR CROP DAMAGES IN FIELD 7105; (3) $158.38 FOR CROP DAMAGES IN FIELD 154; (4) $86.25 FOR CROP DAMAGES IN FIELD 5100; AND (5) $91.60 FOR SOIL COMPACTED IN FIELD 8107. YOU WERE THUS ALLOWED $5,882.02 OF THE TOTAL AMOUNT OF $9,060.50 CLAIMED.

YOU SAY THAT YOU CANNOT UNDERSTAND THE DISALLOWANCE OF $472.40 OF CROP DAMAGES IN FIELD 6104; THAT THIS FIELD IS ADJACENT TO FIELD 7105, BEING SEPARATED BY ONLY A FIELD ROAD; THAT EACH FIELD WAS IN A GROWING STATUS AT THE TIME THE CABLE WAS INSTALLED; THAT PLANT LOSS WAS CALCULATED THE SAME FOR EACH FIELD; AND THAT THESE FIELDS ARE STILL STANDING AND PLANT LOSS REMAINS IN EVIDENCE.

YOU PROTEST THE DISALLOWANCE OF $411.77 AND $1,552.07 FOR CROPS NOT HARVESTED IN FIELDS 154 AND 5100, RESPECTIVELY, STATING THAT YOU HARVEST PINEAPPLES WITH A 16 TON HARVESTER IN CONJUNCTION WITH A FIELD HAULING TRUCK WHICH MUST BE COUPLED TO THE HARVESTER; THAT DURING THE TIME OF THE CABLE INSTALLATION, HARVESTING WAS NOT POSSIBLE SINCE IN NO WAY WAS IT POSSIBLE TO CROSS THE OPEN TRENCHES AND THAT YOU SUFFERED CONSIDERABLE FRUIT DAMAGE BECAUSE OF THE OPEN TRENCH.

FURTHER, YOU PROTEST THE DISALLOWANCE OF $733.40 FOR RAINSTORM DAMAGE TO FIELD 8107. YOU SAY THAT TO COOPERATE WITH THE UNITED STATES ARMY SIGNAL CORPS YOU DELAYED THE PLANTING OF THIS FIELD BY APPROXIMATELY THREE WEEKS; THAT BY SO DOING YOU ENCOUNTERED CONSIDERABLE STORM DAMAGE, THAT HAD NOT YOU COOPERATED WITH THE GOVERNMENT AND CONTINUED YOUR PLANTING PROGRAM AS SCHEDULED, YOUR CLAIMS FOR DAMAGE WOULD HAVE AMOUNTED TO SEVERAL THOUSAND DOLLARS IN THIS AREA, AND THAT YOU ARE THUS PENALIZED FOR YOUR COOPERATION WITH A GOVERNMENT PROJECT.

THE GOVERNMENT INSTALLED THE CABLES THROUGH YOUR PINEAPPLE FIELDS PURSUANT TO PERPETUAL EASEMENTS COVERED BY TWO SEPARATE CONVEYANCES. ONE IS IDENTIFIED AS COVERING THE SEGMENT DESIGNATED AS 1111RW90 AND IS DATED MAY 16, 1946. THE OTHER IS IDENTIFIED AS COVERING THE GREATER PORTION OF THE SEGMENT DESIGNATED AS 1111RW230 AND IS DATED SEPTEMBER 12, 1951. DEVIATIONS FROM THE RIGHT-OF-WAY GRANTED IN SEGMENT 1111RW90 ARE COVERED BY RIGHT OF ENTRY DOCUMENT DATED APRIL 18, 1958, WHICH WAS MADE SUBJECT TO THE EASEMENT DOCUMENT COVERING SEGMENT 1111RW90.

THE EASEMENT COVERED BY THE DOCUMENT DATED MAY 16, 1946, (FIELDS 154 AND 5100), COVERING SEGMENT 1111RW90 WAS CONVEYED SUBJECT TO CONDITIONS INCLUDING THE FOLLOWING:

"3. UPON COMPLETION OF THE WORK OR UPON MAKING ANY REPAIRS OR RENEWALS, ALL MATERIALS NOT USED IN THE COMPLETED WORK AND ALL EQUIPMENT AND DEBRIS SHALL BE REMOVED BY THE GRANTEE, AND THE PREMISES LEFT IN AS GOOD CONDITION AS FOUND PRIOR TO THE COMMENCEMENT OF WORK.

"4. ANY DAMAGE TO ROADWAYS, SIDEWALKS, BUILDINGS, FENCES, CULVERTS, WATER MAINS, OR OTHER INSTALLATIONS, INCIDENT TO THE LAYING OR MAINTENANCE OF SAID CABLE OR CABLES AND/OR CABLE HUT OR HUTS, SHALL BE REPAIRED BY THE GRANTEE WITHOUT COST TO THE GRANTORS. THE GRANTEE SHALL COMPENSATE THE GRANTORS FOR ANY AND ALL DAMAGES TO GROWING CROPS CAUSED BY THE EXERCISE OF THE RIGHTS GRANTED HEREIN TO THE GRANTEE.

"5. THE GRANTEE SHALL EXERCISE EVERY PRECAUTION TO PROTECT, AS FAR AS POSSIBLE, THE PROPERTY OF THE GRANTORS DURING THE TIME WORK IS IN PROGRESS INCIDENT TO THE USE OF THE EASEMENT CONVEYED BY THE GRANTORS.

"7. AT NO TIME SHALL ANY RAILROAD TRACKS OR ROADS BELONGING TO THE GRANTORS BE SO BLOCKED AS TO INTERFERE WITH THEIR USE OF THE SAME.'

THE EASEMENT COVERED BY THE DOCUMENT DATED SEPTEMBER 12, 1951 (FIELDS 6104, 7105, AND 8107), COVERING THE GREATER PORTION OF SEGMENT 1111RW230, WAS CONVEYED SUBJECT TO CONDITIONS INCLUDING THE FOLLOWING:

"4. THAT THE GRANTEE SHALL, UPON THE COMPLETION OF ANY WORK IN CONNECTION WITH SAID UNDERGROUND COMMUNICATION CABLE LINES, REMOVE ALL MATERIALS AND EQUIPMENT NOT USED AND SHALL REMOVE ALL DEBRIS AND RESTORE THE SAID PROPERTY TO AS GOOD A CONDITION AS EXISTED PRIOR TO THE COMMENCEMENT OF WORK.

"5. THAT THE GRANTEE SHALL REPAIR WITHOUT COST TO THE GRANTOR ANY DAMAGE TO ROADWAYS, SIDEWALKS, BUILDINGS, FENCES, CULVERTS, WATERMAINS OR OTHER INSTALLATIONS CAUSED IN ANY WAY BY VIRTUE OF THE EXERCISE OF THE RIGHTS HEREBY GRANTED.

"6. THAT THE GRANTEE SHALL PAY TO THE OWNERS THEREOF JUST COMPENSATION FOR ANY CROPS DAMAGED OR DESTROYED CAUSED IN ANY WAY BY THE EXERCISE OF THE RIGHTS HEREBY GRANTED. THE GRANTEE SHALL USE THE UTMOST CARE TO CAUSE THE LEAST POSSIBLE CROP DAMAGE AT ALL TIMES WORK IS IN PROGRESS INCIDENT TO THE RIGHTS HEREBY GRANTED.

"7. THAT THE GRANTEE SHALL EXERCISE EVERY PRECAUTION TO PROTECT THE PROPERTY OF THE GRANTOR DURING ANY TIME WORK IS IN PROGRESS INCIDENT TO THE RIGHTS HEREBY GRANTED.

"8. THAT THE GRANTEE SHALL AT NO TIME BLOCK ANY RAILROAD TRACKS OR ROADS SO AS TO INTERFERE WITH THEIR USE.'

CONCERNING THE DISALLOWANCE OF A PORTION OF YOUR CLAIMS FOR PLANT LOSS THE AMOUNTS WHICH WERE ALLOWED THEREFOR WERE DETERMINED BY THE ADMINISTRATIVE OFFICERS OF THE DEPARTMENT OF THE ARMY AS REPRESENTING THE VALUE OF THE PLANT LOSS. AS STATED IN THE LETTER DATED DECEMBER 19, 1960, OF OUR CLAIMS DIVISION TO YOU, IT IS THE ESTABLISHED RULE OF THE ACCOUNTING OFFICERS TO ACCEPT THE STATEMENT OF FACTS FURNISHED BY THE ADMINISTRATIVE OFFICERS WHERE THERE ARE DISPUTED QUESTIONS OF FACT BETWEEN SUCH ADMINISTRATIVE OFFICERS AND CLAIMANTS. THIS IS ESPECIALLY TRUE IN DAMAGE CLAIMS SINCE WE ARE NOT IN A POSITION TO DETERMINE THE EXACT AMOUNT DUE.

WITH RESPECT TO YOUR CLAIM FOR $411.77 AND $1,552.07 FOR MATURE FRUIT NOT HARVESTED IN FIELDS 154 AND 5100, RESPECTIVELY, BECAUSE OF TRENCHES ALLEGEDLY LEFT OPEN ACROSS ROADS FOR A PERIOD DURING AND EXTENDING BEYOND THE HARVESTING SEASON, THE RECORD IS CLEAR THAT YOUR COMPANY MADE NO ATTEMPT TO NOTIFY THE GOVERNMENT OF SUCH CONDITION. WHILE THE RECORD IS NOT CLEAR AS TO WHETHER ROADS ACTUALLY WERE SO BLOCKED AS TO RESULT IN A BREACH BY THE GOVERNMENT OF CONDITION 7 OF THE DOCUMENT DATED MAY 16, 1946, IT WOULD APPEAR THAT HAD SUCH NOTIFICATION BEEN MADE, CORRECTIVE ACTION BY GOVERNMENT FORCES WOULD HAVE BEEN TAKEN THEREBY ENABLING YOU TO PROCEED WITH YOUR HARVESTING OPERATIONS WITHOUT FURTHER OBSTRUCTION. THE LAW IS WELL ESTABLISHED THAT WHERE TWO PARTIES HAVE MADE A CONTRACT, WHICH ONE OF THEM HAS BROKEN, THE OTHER MUST MAKE REASONABLE EXERTIONS TO RENDER HIS INJURY AS LIGHT AS POSSIBLE; AND HE CANNOT RECOVER FROM THE PARTY BREAKING THE CONTRACT DAMAGES WHICH WOULD HAVE BEEN AVOIDED HAD HE PERFORMED SUCH DUTY. SHAMBLEN V. GREAT LAKES PIPE LINE CO., 64 N.W.2D 728; COMMODITY CREDIT CORP. V. ROSENBERG BROS. AND CO., 243 F.2D 504; DE FORE V. UNITED STATES, 145 F.SUPP. 484. THEREFORE, WE MUST SUSTAIN THE DISALLOWANCE OF YOUR CLAIM FOR MATURE FRUIT NOT HARVESTED.

REGARDING YOUR CLAIM FOR RAINSTORM DAMAGE WHICH YOU SAY WAS SUFFERED AS THE RESULT OF YOUR DELAYING THE PLANTING OF FIELD 8107 IN ORDER TO COOPERATE WITH THE CABLE LAYING PROJECT, WE SHOULD LIKE TO POINT OUT THAT THE CLAIM IS NOT FOR PLANTS DESTROYED BY THE GOVERNMENT ACTIVITIES IN THE FIELD OR FOR CROP DAMAGE AS SUCH BUT IS FOR REIMBURSEMENT OF EXPENSES OCCASIONED BY REPAIRS TO AND RECULTIVATION OPERATIONS OF THE LAND DAMAGED BY THE RAINSTORM, WHICH LAND HAD BEEN PREPARED FOR PLANTING.

CONDITION 5 OF THE DOCUMENT DATED SEPTEMBER 12, 1951, PROVIDES THAT THE GRANTEE SHALL REPAIR WITHOUT COST TO THE GRANTOR ANY DAMAGE TO ROADWAYS, SIDEWALKS, BUILDINGS, FENCES, CULVERTS, WATERMAINS, OR OTHER "INSTALLATIONS" CAUSED IN ANY WAY BY VIRTUE OF THE EXERCISE OF THE RIGHTS THEREBY GRANTED. HOWEVER, THE TERM "INSTALLATIONS" AS USED HERE MEANS INSTALLATIONS UPON THE LAND--- NOT IMPROVED LANDS. TRANSCONTINENTAL GAS PIPE LINE CORP. V. HILL, 55 SO.2D 170; CF. FULKERSON V. GREAT LAKES PIPE LINE CO. 60 S.W.2D 71.

THE DAMAGES RECOVERABLE UNDER A CONTRACT FOR THE PAYMENT OF DAMAGES DEPEND ON THE TERMS OF THE CONTRACT. WHERE A PARTY CONTRACTS TO PAY CERTAIN SPECIFIED DAMAGES HE IMPLIEDLY EXCLUDES ALL DAMAGES NOT SO EXPRESSED UNLESS A CONTRARY INTENT IS PLAINLY INDICATED. 17 C.J.S. CONTRACTS, SEC. 312, P. 730; 12 AM.JUR., CONTRACTS, SEC. 239, P. 765. THIS RULE HAS BEEN APPLIED TO CONTRACTS OF THE KIND HERE INVOLVED. SEE SHAMBLEN V. GREAT LAKES PIPE LINE CO., 64 N.W.2D 728; FULKERSON V. GREAT LAKES PIPE LINE CO., 75 S.W.2D 844; SHELL PIPE LINE CORPORATION V. COST ON, 35 S.W.2D 1056; O-CONNOR V. GREAT LAKES PIPE LINE CO., 63 F.2D 523. WE THINK IT OBVIOUS THAT THE GOVERNMENT DID NOT CONTRACT TO PAY DAMAGES FOR INJURY TO PREPARED LAND CAUSED BY A RAINSTORM. THEREFORE, WE MUST SUSTAIN THE DISALLOWANCE OF YOUR CLAIM THEREFOR.

ACCORDINGLY, THE SETTLEMENT OF OCTOBER 12, 1960, MUST BE, AND IS, AFFIRMED.