B-148669, JUNE 11, 1962, 41 COMP. GEN. 796

B-148669: Jun 11, 1962

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REAL PROPERTY - TITLE CLOUD - CONDEMNATION THE USE OF FUNDS APPROPRIATED FOR FOREST MANAGEMENT TO PAY A DEPOSIT TO A COURT INCIDENT TO A CONDEMNATION PROCEEDING WHICH IS INSTITUTED TO OBTAIN CLEAR TITLE TO LAND BUT WHICH WILL RESULT IN OBTAINING A NEW TITLE IS IN EFFECT A DEPOSIT FOR THE PURCHASE OF LAND WHICH UNDER 41 U.S.C. 14 REQUIRES SPECIFIC AUTHORIZING LEGISLATION AND. THE FACTS IN THE CASE ARE SET FORTH BELOW: BY DEED DATED MARCH 15. THE TITLE TO THE LAND WAS APPROVED BY THE ATTORNEY GENERAL UPON ITS ACQUISITION IN 1937 AND REAFFIRMED ON AUGUST 27. MOST OF THE NORTHEAST GEORGIA LAND UTILIZATION PROJECT WAS INCLUDED WITHIN THE CHATTAHOOCHEE NATIONAL FOREST. WAS NOT GIVEN NATIONAL FOREST STATUS AND CONTINUED TO BE ADMINISTERED UNDER THE PROVISIONS OF TITLE III OF THE BANKHEAD-JONES FARM TENANT ACT.

B-148669, JUNE 11, 1962, 41 COMP. GEN. 796

REAL PROPERTY - TITLE CLOUD - CONDEMNATION THE USE OF FUNDS APPROPRIATED FOR FOREST MANAGEMENT TO PAY A DEPOSIT TO A COURT INCIDENT TO A CONDEMNATION PROCEEDING WHICH IS INSTITUTED TO OBTAIN CLEAR TITLE TO LAND BUT WHICH WILL RESULT IN OBTAINING A NEW TITLE IS IN EFFECT A DEPOSIT FOR THE PURCHASE OF LAND WHICH UNDER 41 U.S.C. 14 REQUIRES SPECIFIC AUTHORIZING LEGISLATION AND, THEREFORE, THE APPROPRIATION FOR FOREST MANAGEMENT MAY NOT BE USED FOR PAYMENT OF THE DEPOSIT COURT IN CONNECTION WITH THE CONDEMNATION PROCEEDINGS.

TO THE SECRETARY OF AGRICULTURE, JUNE 11, 1962:

THE ASSISTANT SECRETARY OF AGRICULTURE, MR. FRANK J. WELCH, BY LETTER OF APRIL 13, 1962, REQUESTS A DECISION AS TO THE PROPRIETY OF YOUR DEPARTMENT'S PROPOSED ACTION TO PROTECT THE INTERESTS OF THE GOVERNMENT IN A CERTAIN TRACT OF LAND IN BANKS COUNTY, GEORGIA.

THE FACTS IN THE CASE ARE SET FORTH BELOW:

BY DEED DATED MARCH 15, 1937, THE UNITED STATES ACQUIRED TITLE TO 131.78 ACRES OF LAND, MORE OR LESS, FROM THE BALDWIN STATE BANK OF THE STATE OF GEORGIA, UNDER AUTHORITY OF THE RESETTLEMENT ADMINISTRATION AS PART OF THE NORTHEAST GEORGIA LAND UTILIZATION PROJECT. THE TITLE TO THE LAND WAS APPROVED BY THE ATTORNEY GENERAL UPON ITS ACQUISITION IN 1937 AND REAFFIRMED ON AUGUST 27, 1951.

THE SECRETARY OF AGRICULTURE BY ADMINISTRATIVE ORDER DATED JULY 18, 1937, TRANSFERRED THE LANDS IN THE PROJECT TO THE FOREST SERVICE FOR ADMINISTRATION, PROTECTION AND MANAGEMENT. BY PROCLAMATIONS IN 1938 AND 1940, MOST OF THE NORTHEAST GEORGIA LAND UTILIZATION PROJECT WAS INCLUDED WITHIN THE CHATTAHOOCHEE NATIONAL FOREST. THE BALDWIN STATE BANK TRACT, NO. 147-R, BEING ISOLATED FROM THE OTHER PROJECT LANDS, WAS NOT GIVEN NATIONAL FOREST STATUS AND CONTINUED TO BE ADMINISTERED UNDER THE PROVISIONS OF TITLE III OF THE BANKHEAD-JONES FARM TENANT ACT, 7 U.S.C. 1010, ET SEQ.

IN 1948, J. I. COFFEE OF BALDWIN, GEORGIA, NOW DECEASED, INFORMED THE FOREST RANGER THAT HE CLAIMED ALL OR PART OF TRACT 147-R, WHICH CLAIM WAS DENIED. IN 1949, MR. COFFEE PRESENTED HIS CLAIM TO THE ATTORNEY GENERAL WHO IN TURN REQUESTED THIS DEPARTMENT TO INVESTIGATE THE MERITS OF MR. COFFEE'S CLAIM. THE GOVERNMENT'S ABSTRACT OF TITLE TO TRACT 147-R WAS SUPPLEMENTED, AND AN ENGINEERING DETERMINATION MADE AS TO WHAT EXTENT, IF ANY, THE LANDS CLAIMED BY MR. COFFEE ACTUALLY ENCROACHED UPON THE LAND OWNED BY THE UNITED STATES. THE CLAIM WAS INVESTIGATED AND TITLE SHOWN TO BE VESTED IN THE UNITED STATES. AN ENGINEERING ANALYSIS WAS PREPARED BY FOREST SERVICE ENGINEER SAM K. GREENWOOD SHOWING THAT THE AREA COVERED BY MR. COFFEE'S DEED OF RECORD DATED OCTOBER 23, 1944, FROM HIS AUNT, TRYPHENIA COFFEE PARKER, TO J. I. COFFEE, WAS SITUATED ENTIRELY OUTSIDE THE EXTERIOR BOUNDARIES OF TRACT 147-R.

IN AUGUST 1953, A PROCESSIONING PROCEEDING UNDER GEORGIA LAW, TO MARK THE EXTERIOR BOUNDARIES OF HIS LAND WAS INSTITUTED BY MR. COFFEE WITH THE UNITED STATES BEING NAMED A PARTY AS AN ADJOINING LANDOWNER. REGIONAL FOREST SERVICE OFFICIALS AND THE UNITED STATES ATTORNEY WERE NOTIFIED OF THIS ACTION. IT WAS DECIDED THAT THE GOVERNMENT WOULD NOT ENTER INTO LITIGATION IN A STATE TRIBUNAL SINCE THE TITLE OF THE UNITED STATES COULD NOT BE DIVESTED BY THE STATE COURT ACTION.

ON OCTOBER 25, 1953, MR. COFFEE CUT AND REMOVED TREES FROM THE GOVERNMENT LAND. THE UNITED STATES ATTORNEY AT ROME, GEORGIA, WAS NOTIFIED AND HE TOOK STEPS TO REQUEST AN INJUNCTION, SHOULD MR. COFFEE ATTEMPT TO CUT MORE TIMBER. AT THIS TIME, MR. COFFEE HAD ACQUIRED A PARTNER, JOHN F. CAREY, AND ON DECEMBER 7, 1963, MR. COFFEE DIED. MR. CAREY AND MR. COFFEE'S WIDOW CONTINUED TO PRESS THEIR CLAIM AND, ON APRIL 15, 1954, THE FOREST SERVICE FOUND THAT THE CLAIMANTS WERE CUTTING TIMBER ON A LARGE SCALE ON GOVERNMENT TRACT 147-R.

ON APRIL 16, 1954, A SHOW-CAUSE AND TEMPORARY RESTRAINING ORDER WAS FILED IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA, CASE NUMBER 607, ENTITLED UNITED STATES OF AMERICA V. JOHN F. CAREY, ET AL. ON APRIL 30, 1954, THE COURT DISMISSED THE CASE ON THE MOTION OF THE DEFENDANT ON THE BASIS THAT THE UNITED STATES COULD NOT SHOW POSSESSORY TITLE SUFFICIENT TO MEET THE REQUIREMENTS OF GEORGIA LAW. THE FEDERAL COURT DISMISSED THE CASE WITHOUT PREJUDICE TO WHATEVER TITLE THE UNITED STATES MAY HAVE IN THE LANDS. SINCE THAT TIME, YOUR DEPARTMENT HAS ATTEMPTED TO DEVELOP EVIDENCE WHICH WOULD STRENGTHEN YOUR POSITION. NOTHING SUBSTANTIAL HAS BEEN DISCOVERED AND YOUR DEPARTMENT HAS BEEN ADVISED INFORMALLY BY THE ATTORNEY GENERAL'S OFFICE AND BY YOUR OWN COUNSEL THAT THE GOVERNMENT COULD NOT SUSTAIN A TRESPASS ACTION AGAINST MR. CAREY. IN ORDER TO MAINTAIN SUCH AN ACTION UNDER GEORGIA LAW, THE ASSISTANT SECRETARY STATES THAT THE UNITED STATES IS REQUIRED TO BE ABLE TO SHOW PERFECT RECORD TITLE. YOUR DEPARTMENT HAS BEEN ADVISED THAT UNDER THE FACTS IN THIS CASE, AS SHOWN IN THE " STATEMENT OF FACTS RELATING TO TITLE" ENCLOSED WITH THE ASSISTANT SECRETARY'S LETTER, THE ONLY POSSIBILITY OF PROTECTING THE GOVERNMENT'S INTEREST IS THROUGH THE INSTITUTION OF A CONDEMNATION PROCEEDING. IN SUCH A PROCEEDING, THE PRESENT VALUE OF THE LAND MUST BE DEPOSITED WITH THE COURT.

THE ASSISTANT SECRETARY ADVISES THAT ACCORDING TO YOUR DEPARTMENT'S RECORD EVIDENCE AND THE OPINION OF THE ATTORNEY GENERAL, OWNERSHIP OF THIS TRACT IS VESTED IN THE UNITED STATES. HE STATES THAT THE INSTITUTION OF CONDEMNATION PROCEEDING IS DEEMED NECESSARY TO PREVENT OTHERS FROM REMOVING TIMBER AND OTHER ASSETS FROM THE LAND. NORMAL POSSESSORY ACTION HAVING FAILED, YOUR DEPARTMENT BELIEVES THE SUGGESTED REMEDY TO BE THE ONLY ONE AVAILABLE TO YOU AND IT IS FOR THE SOLE PURPOSE OF PROTECTING THE GOVERNMENT'S INTEREST IN THE LAND.

IT IS PROPOSED TO USE FUNDS UNDER THE APPROPRIATION " FOREST PROTECTION AND UTILIZATION, FOREST SERVICE" FOR MAKING THE NECESSARY DEPOSIT IN THE COURT IN THE CONDEMNATION PROCEEDINGS. THIS APPROPRIATION FOR THE CURRENT FISCAL YEAR IS PROVIDED IN TITLE II OF PUBLIC LAW 87-122, APPROVED AUGUST 3, 1961, 75 STAT. 257, AND, ACCORDING TO THE ASSISTANT SECRETARY, IS LEGALLY AVAILABLE FOR THE ADMINISTRATION, PROTECTION AND MANAGEMENT OF THE LAND IN QUESTION. OUR DECISION IS REQUESTED AS TO THE LEGALITY OF THE PROPOSED EXPENDITURE FROM THE APPROPRIATION INDICATED.

THE APPROPRIATION PROVISION IN QUESTION PROVIDES, IN PERTINENT PART AS FOLLOWS:

FOR EXPENSES NECESSARY FOR FOREST PROTECTION AND UTILIZATION, AS FOLLOWS:

FOREST LAND MANAGEMENT: FOR NECESSARY EXPENSES OF THE FOREST SERVICE, NOT OTHERWISE PROVIDED FOR, INCLUDING THE ADMINISTRATION, IMPROVEMENT, DEVELOPMENT, AND MANAGEMENT OF LANDS UNDER FOREST SERVICE ADMINISTRATION, * * * $128,000,000 * * *.

SECTION 14, TITLE 41, U.S.C. PROVIDES THAT:

NO LAND SHALL BE PURCHASED ON ACCOUNT OF THE UNITED STATES, EXCEPT UNDER A LAW AUTHORIZING SUCH PURCHASE.

WHILE THE UNITED STATES IS STATED TO HAVE TITLE TO THE LAND IN QUESTION, IT IS CLEAR FROM THE RECORD BEFORE US THAT THE GOVERNMENT'S TITLE IS NOT SUFFICIENT UNDER GEORGIA LAW TO PREVENT OTHERS FROM REMOVING TIMBER FROM THE LAND. ALTHOUGH AFTER THE CONDEMNATION PROCEEDING THE UNITED STATES WILL HAVE GOOD TITLE TO THE LAND, THE GOOD TITLE WILL RESULT FROM THE CONDEMNATION PROCEEDING AND NOT FROM THE DEED OF MARCH 15, 1937, UNDER WHICH THE GOVERNMENT PURPORTEDLY ACQUIRED TITLE FROM THE BALDWIN STATE BANK. IN OTHER WORDS THE CONDEMNATION PROCEEDING WILL NOT CLEAR THE TITLE WHICH THE UNITED STATES OBTAINED UNDER THE DEED OF MARCH 15, 1937, RATHER IT WILL RESULT IN THE GOVERNMENT OBTAINING A NEW TITLE TO THE LAND WITHOUT REGARD TO THE MARCH 15TH DEED.

" CONDEMNATION" IS AN ENFORCED SALE OF LAND AND THE GOVERNMENT STANDS TOWARD THE OWNER AS BUYER TOWARD SELLER. SEE UNITED STATES V. BECKTOLD CO., 129 F.2D 473. THUS, THE CONDEMNATION OF LAND IS, IN EFFECT, THE PURCHASE OF LAND. UNDER 41 U.S.C. 14 LAND MAY NOT BE PURCHASED, EXCEPT UNDER A LAW AUTHORIZING SUCH PURCHASE. APPARENTLY, THE LAND INVOLVED ORIGINALLY WAS PURCHASED UNDER TITLE III OF THE BANKHEAD-JONES FARM TENANT ACT, 7 U.S.C. 1010, ET SEQ., WHICH AUTHORIZES THE PURCHASE OF SUBMARGINAL LAND (WHICH PRESUMABLY THE LAND IN QUESTION IS). HOWEVER, THE APPROPRIATION REFERRED TO IN THE ASSISTANT SECRETARY'S LETTER," FOREST PROTECTION AND UTILIZATION, FOREST SERVICE," CONTAINED IN TITLE II OF THE DEPARTMENT OF THE INTERIOR AND RELATED AGENCIES APPROPRIATION ACT, 1962, 75 STAT. 257, IS NOT AVAILABLE FOR THE PURCHASE OF LAND, EXCEPT IN AN INSTANCE NOT PERTINENT HERE. ACCORDINGLY, IT MAY NOT BE USED FOR MAKING THE NECESSARY DEPOSIT INTO THE COURT IN CONNECTION WITH THE CONDEMNATION PROCEEDINGS.