B-151291, MAY 15, 1963

B-151291: May 15, 1963

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AARON: REFERENCE IS MADE TO THE REQUEST FOR RECONSIDERATION OF THAT PORTION OF OUR SETTLEMENT DATED SEPTEMBER 20. 700 DAMAGES FOR CAVING OF RIVERBANK LAND ALONG AN 8-ACRE TRACT ALLEGEDLY CAUSED BY ACTIVITIES OF UNITED STATES ARMY PERSONNEL DURING THE COURSE OF EXERCISE SAGEBRUSH WHICH WAS HELD IN THE STATE OF LOUISIANA IN 1955. THERE WAS EXCEPTED FROM SUCH SETTLEMENT AGREEMENT "DAMAGE FOR THE ACTUAL RIVER CROSSING AND APPROXIMATELY 8 ACRES OF LAND NEAR RIVER CROSSING AND DAMAGE CAUSED BY CONSTRUCTION OF ACCESS ROAD TO RIVER CROSSING.'. YOUR POSITION IS THAT THE ARMY. YOUR RIGHT TO RESTORATION OR A CASH SETTLEMENT UNDER THE MANEUVER AGREEMENT IS NECESSARILY DEPENDENT UPON IT BEING ESTABLISHED THAT THE DAMAGE WAS CAUSED BY GOVERNMENT PERSONNEL IN THE EXERCISE OF PRIVILEGES GRANTED TO USE YOUR LAND FOR MANEUVERS.

B-151291, MAY 15, 1963

TO MR. JOHN M. AARON:

REFERENCE IS MADE TO THE REQUEST FOR RECONSIDERATION OF THAT PORTION OF OUR SETTLEMENT DATED SEPTEMBER 20, 1961, BY WHICH OUR CLAIMS DIVISION DISALLOWED YOUR CLAIM FOR $2,700 DAMAGES FOR CAVING OF RIVERBANK LAND ALONG AN 8-ACRE TRACT ALLEGEDLY CAUSED BY ACTIVITIES OF UNITED STATES ARMY PERSONNEL DURING THE COURSE OF EXERCISE SAGEBRUSH WHICH WAS HELD IN THE STATE OF LOUISIANA IN 1955.

THE RECORD SHOWS THAT YOU AND YOUR TENANT, MR. J. H. WILLIAMS, GRANTED TO THE GOVERNMENT THE RIGHT TO USE YOUR LAND FOR MANEUVERS AND FIELD EXERCISES BY THE ARMY UNDER AGREEMENTS DATED SEPTEMBER 15, 1955, WHEREBY IT PROMISED TO REPAIR, REPLACE, AND RESTORE THE PREMISES TO THE CONDITION EXISTING AT THE TIME OF THE AGREEMENT OR MAKE A CASH SETTLEMENT IN LIEU THEREOF IN THE EVENT OF THEIR BEING DAMAGED AS THE RESULT OF THE GOVERNMENT'S EXERCISE OF THE PRIVILEGES GRANTED. BY SETTLEMENT AGREEMENT SIGNED MARCH 5, 1956, YOU AND YOUR TENANT AGREED TO ACCEPT THE SUM OF $5,872.38 AS FULL AND COMPLETE SATISFACTION FOR ALL DAMAGES INCURRED UNDER THE MANEUVER AGREEMENTS. HOWEVER, THERE WAS EXCEPTED FROM SUCH SETTLEMENT AGREEMENT "DAMAGE FOR THE ACTUAL RIVER CROSSING AND APPROXIMATELY 8 ACRES OF LAND NEAR RIVER CROSSING AND DAMAGE CAUSED BY CONSTRUCTION OF ACCESS ROAD TO RIVER CROSSING.' WE UNDERSTAND THAT YOUR TENANT MR. WILLIAMS, RECEIVED THE FULL BENEFIT OF SUCH PAYMENT. THE GOVERNMENT, ALSO, PAID YOU $1,661 FOR DIRT USED TO FILL A CUT IN THE 8 ACRES INVOLVED.

YOUR POSITION IS THAT THE ARMY, IN CONSTRUCTING ABUTMENTS FOR PONTOON BRIDGES CROSSING THE RED RIVER DEFLECTED THE NATURAL COURSE OF THE RIVER CAUSING IT TO ERODE A CONSIDERABLE ACREAGE OF YOUR LAND.

YOUR RIGHT TO RESTORATION OR A CASH SETTLEMENT UNDER THE MANEUVER AGREEMENT IS NECESSARILY DEPENDENT UPON IT BEING ESTABLISHED THAT THE DAMAGE WAS CAUSED BY GOVERNMENT PERSONNEL IN THE EXERCISE OF PRIVILEGES GRANTED TO USE YOUR LAND FOR MANEUVERS. INVESTIGATIONS CONDUCTED BY THE DEPARTMENT OF THE ARMY DISCLOSE THAT THE RED RIVER IS A NATURALLY MEANDERING STREAM SUBJECT TO CHANGES IN CHANNEL; THAT THE AREA IN QUESTION IS LOCATED SUCH THAT EROSION FROM NATURAL FORCES COULD BE EXPECTED; AND THAT THE EROSION PROCESS IS EVIDENT BOTH UPSTREAM AND DOWNSTREAM IN SIMILAR AREAS. UNDER SUCH CIRCUMSTANCES, THE DEPARTMENT OF THE ARMY COULD NOT CONCLUDE THAT ITS ACTIVITIES HAD MATERIALLY AFFECTED THE COURSE OF THE RED RIVER SO AS TO CAUSE YOU DAMAGE. ON SUCH BASIS, IT WAS ADMINISTRATIVELY RECOMMENDED THAT THE SETTLEMENT OF SEPTEMBER 20, 1961, BE REAFFIRMED.

IN CASES OF DOUBTFUL VALIDITY, IT IS WELL ESTABLISHED THAT THE ACCOUNTING OFFICERS OF THE GOVERNMENT ARE NOT REQUIRED OR AUTHORIZED TO CERTIFY SUCH CLAIMS FOR PAYMENTS, THUS LEAVING THE CLAIMANT TO HIS REMEDY, IF ANY, AT LAW. SEE LONGWILL V. UNITED STATES, 17 CT.CL. 288, 291 AND CHARLES V. UNITED STATES 19 CT.CL. 316, 319.