B-151891, AUG. 8, 1963

B-151891, AUG. 8, 1963

TO MR. J. HARVEY CROW:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 24, 1963, CONCERNING THE REFUSAL BY THE VETERANS ADMINISTRATION OF YOUR REQUEST TO CONNECT TO A GOVERNMENT- OWNED SEWER LINE AT THE VETERANS ADMINISTRATION HOSPITAL, BRECKSVILLE, OHIO.

CONSTRUCTION OF THE HOSPITAL INVOLVED THE TAKING BY CONDEMNATION OF CERTAIN LAND THEN OWNED BY YOU AND YOU CONTEND THAT VA OFFICIALS HAD AGREED THAT IN CONSIDERATION OF THE PURCHASE PRICE PAID FOR THE LAND YOU WOULD BE PERMITTED TO USE THE SEWER FACILITIES TO BE CONSTRUCTED BY VA AT NO EXPENSE TO YOURSELF. YOU STATE THAT PURSUANT TO SUCH AGREEMENT AND TO PROTECT YOUR RIGHT TO THE USE OF THESE FACILITIES THE THEN ASSISTANT DISTRICT ATTORNEY FOR THE NORTHERN DISTRICT OF OHIO INSERTED A PARAGRAPH IN THE STIPULATED SETTLEMENT OF MARCH 19, 1958, WHICH READS AS FOLLOWS:

"IT FURTHER APPEARING THAT BY THE STIPULATION FILED HEREIN, IT HAS BEEN AGREED BY AND BETWEEN THE PARTIES THERETO THAT PARCEL NO. V-10, AS DESCRIBED IN THE SAID STIPULATION, SHALL BE USED BY THE DEFENDANTS, AUDREY MATTHEWS, WILLIS MATTHEWS, EDITH F. CROW AND J. HARVEY CROW, OR THEIR SUCCESSORS IN TITLE TO PARCELS OF LAND ADJOINING PARCEL NO. V-10, FOR THE PURPOSE OF INGRESS AND EGRESS TO SAID LAND, AND ANY UTILITY MAY INSTALL EITHER BELOW OR ABOVE THE GROUND ANY SERVICE FOR USE OF THE LANDS ADJOINING PARCEL NO. V-10 OWNED BY THE DEFENDANTS, AUDREY MATTHEWS, WILLIS MATTHEWS, EDITH F. CROW AND J. HARVEY CROW, OR ANY OF THEIR SUCCESSORS IN TITLE OR INTEREST; AND THAT PARCEL NO. V-10 SHALL BE USED AS INGRESS AND EGRESS FOR ROAD PURPOSES, SEWER OR WATER LINES, GAS, ELECTRICITY, OR TELEPHONE SERVICE FOR ANY LAND ADJOINING SAID PARCEL NOW OWNED BY THE DEFENDANTS, AUDREY MATTHEWS, WILLIS MATTHEWS, EDITH F. CROW AND J. HARVEY CROW OR ANY OF THEIR SUCCESSORS IN INTEREST TO SAID LAND.'

THE ABOVE STIPULATION CLEARLY GIVES TO YOU THE RIGHT OF INGRESS AND EGRESS OVER PARCEL NO. V-10 BUT WE SEE NOTHING THEREIN WHICH GIVES TO YOU THE RIGHT TO TIE INTO ANY GOVERNMENT-OWNED SEWER LINE THAT VA MIGHT CONSTRUCT ON SUCH PARCEL NOR DOES IT REQUIRE VA TO CONSTRUCT A SEWER LINE ON THAT PARCEL. INSOFAR AS SEWER FACILITIES ARE CONCERNED THE STIPULATION MERELY RESERVES TO YOU OR A UTILITY THE RIGHT TO CONSTRUCT UTILITY FACILITIES ABOVE OR BELOW GROUND OVER PARCEL NO. V-10 FOR THE PURPOSE OF SERVICING THE PROPERTY OWNED BY YOU.

SINCE THIS STIPULATION IS STATED AS HAVING BEEN DRAFTED BY THE ASSISTANT DISTRICT ATTORNEY FOR THE NORTHERN DISTRICT OF OHIO TO "PROTECT YOUR RIGHTS TO THE USE OF THESE FACILITIES" IT SEEMS TO US THAT IF IT WERE INTENDED TO GIVE YOU THE RIGHT TO TIE INTO A SEWER LINE TO BE CONSTRUCTED BY THE GOVERNMENT THE STIPULATION WOULD HAVE SPECIFICALLY SO PROVIDED. FURTHERMORE THE VA HAS ADVISED US THAT THE HOSPITAL SEWER LINES WERE DESIGNED AND CONSTRUCTED OF ONLY A CAPACITY TO SERVE THE HOSPITAL FACILITIES.

ACCORDINGLY, AND NOTWITHSTANDING YOUR CONTENTION IN THE MATTER, WE SEE NO BASIS FOR DISAGREEING WITH THE POSITION TAKEN BY THE VETERANS ADMINISTRATION THAT THE GOVERNMENT HAS NOT AGREED, NOR IS OTHERWISE UNDER ANY LEGAL OBLIGATION, TO PERMIT YOU TO USE THE GOVERNMENT-OWNED SEWER LINE. IN ANY EVENT, IT DOES NOT APPEAR THAT WE CAN RENDER YOU ANY ASSISTANCE IN THIS MATTER.