B-152725, FEB. 19, 1964

B-152725: Feb 19, 1964

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THE RECORD PRESENTED TO OUR OFFICE IN THIS MATTER DISCLOSES THAT YOUR LAND IN WHICH THE POND HERE IN QUESTION IS LOCATED IS SO SITUATED WITH RESPECT TO DOBBINS AIR FORCE BASE THAT IT RECEIVES NATURAL SURFACE DRAINAGE FROM A PORTION OF SAID BASE. YOU COMPLAINED TO THE JUDGE ADVOCATE'S OFFICE AT THE BASE THAT SILT FROM SAID CONSTRUCTION AREA WAS DRAINING INTO AND DAMAGING YOUR POND. A THOROUGH INVESTIGATION WAS NOT MADE AT THAT TIME. YOU COMPLAINED TO THE RESIDENT ENGINEER AT THE BASE THAT YOUR POND WAS SILTING UP AND WAS BEING CONTAMINATED BY THE DISCHARGE FROM THE SEWAGE TREATMENT PLANT. THAT THE FISH IN YOUR POND WERE DYING. THERE WAS NO EVIDENCE TO SUPPORT THE ALLEGATION THAT THE DISCHARGE FROM THE SEWAGE TREATMENT PLANT WAS POLLUTING YOUR POND.

B-152725, FEB. 19, 1964

TO MR. ALBERT PEARSON DODD:

YOUR CLAIM FOR $15,000 REPRESENTING DAMAGES CLAIMED TO BE DUE FROM SILTATION AND POLLUTION OF YOUR POND, ALLEGEDLY CAUSED BY THE CONSTRUCTION OF AN AIRCRAFT CONTROL AND WARNING SITE AND A FEDERAL AVIATION AGENCY RADAR TOWER AT DOBBINS AIR FORCE BASE, GEORGIA, HAS BEEN REFERRED TO OUR OFFICE FOR HANDLING BY THE U.S. ARMY FINANCE CENTER, INDIANAPOLIS, INDIANA.

THE RECORD PRESENTED TO OUR OFFICE IN THIS MATTER DISCLOSES THAT YOUR LAND IN WHICH THE POND HERE IN QUESTION IS LOCATED IS SO SITUATED WITH RESPECT TO DOBBINS AIR FORCE BASE THAT IT RECEIVES NATURAL SURFACE DRAINAGE FROM A PORTION OF SAID BASE. IN MARCH 1961, SUBSEQUENT TO THE START OF CONSTRUCTION ACTIVITIES IN THAT PORTION OF THE BASE FROM WHICH YOUR LAND RECEIVES THE NATURAL SURFACE DRAINAGE, YOU COMPLAINED TO THE JUDGE ADVOCATE'S OFFICE AT THE BASE THAT SILT FROM SAID CONSTRUCTION AREA WAS DRAINING INTO AND DAMAGING YOUR POND. AS A RESULT OF YOUR COMPLAINT, THE BASE PROJECT ENGINEER MADE AN INVESTIGATION ON OR ABOUT MARCH 10, 1961. THIS INVESTIGATION REVEALED THAT CLAY SILT HAD SETTLED OUT ON A RELATIVELY FLAT AREA ON THE BASE PROPERTY BETWEEN THE CONSTRUCTION SITE AND YOUR PROPERTY, BUT A THOROUGH INVESTIGATION WAS NOT MADE AT THAT TIME. ON JULY 5, 1962, YOU COMPLAINED TO THE RESIDENT ENGINEER AT THE BASE THAT YOUR POND WAS SILTING UP AND WAS BEING CONTAMINATED BY THE DISCHARGE FROM THE SEWAGE TREATMENT PLANT, AND THAT THE FISH IN YOUR POND WERE DYING. THE REPORT PRESENTED TO OUR OFFICE STATES THAT THE INVESTIGATIONS SUBSEQUENTLY MADE IN REGARD TO YOUR CLAIM DETERMINED THAT SILT FROM THE BASE PERIMETER ROAD AND THE CONSTRUCTION SITE HAD DRAINED OVER THE NATURAL WATERCOURSE INTO YOUR POND, LEAVING VISIBLE EVIDENCE OF A MUD BAR WHERE THE NATURAL DRAINAGE ENTERS THE POND. THE GOVERNMENT ASSESSOR ESTIMATED THE DAMAGE TO YOUR PROPERTY CAUSED BY THE SILTATION AT $4,500. HOWEVER, THERE WAS NO EVIDENCE TO SUPPORT THE ALLEGATION THAT THE DISCHARGE FROM THE SEWAGE TREATMENT PLANT WAS POLLUTING YOUR POND, OR EVEN THAT SUCH DISCHARGE REACHED YOUR POND. MOREOVER, IN OCTOBER 1962 A LIFT STATION WAS CONSTRUCTED WHICH PUMPS THE DISCHARGE ONTO OTHER GOVERNMENT PROPERTY AWAY FROM YOUR LAND SO THAT THERE NOW IS NO POSSIBILITY OF SUCH DISCHARGE REACHING YOUR POND. IN ADDITION THE REPORT STATES THAT ADEQUATE GRASS COVER HAS BEEN GROWN ON THE CONSTRUCTION SITE SO THAT NO FURTHER SILTATION WILL OCCUR.

THUS, THE RECORD BEFORE OUR OFFICE SEEMS TO SUPPORT YOUR CONTENTION THAT YOUR POND WAS DAMAGED BY SILT COMING FROM THE CONSTRUCTION AREA OF DOBBINS AIR FORCE BASE. HOWEVER, DETERMINATION OF WHETHER THE GOVERNMENT IS LEGALLY LIABLE FOR SUCH DAMAGE AND THE AMOUNT THEREOF ARE NOT WITHIN THE JURISDICTION OF OUR OFFICE.

THERE ARE ONLY TWO POSSIBLE THEORIES UPON WHICH GOVERNMENT LIABILITY FOR THE DAMAGES TO YOUR POND MIGHT BE PREDICATED. THE FIRST IS THAT THE UNITED STATES OR ITS AGENTS, IN PERFORMING THE CONSTRUCTION ON THE BASE, COMMITTED A TORT UPON YOU, THAT IS, WRONGFULLY INFRINGED A PRIVATE OR CIVIL RIGHT BELONGING TO YOU. THE SECOND THEORY UPON WHICH GOVERNMENT LIABILITY HEREIN MIGHT BE BASED IS THAT THE GOVERNMENT'S ACTIONS CONSTITUTED A "TAKING" OF YOUR PRIVATE PROPERTY FOR PUBLIC USE FOR WHICH UNDER THE FIFTH AMENDMENT TO THE CONSTITUTION JUST COMPENSATION MUST BE MADE. CF. MILLS V. UNITED STATES, 46 F. 738.

PRIOR TO THE EFFECTIVE DATE OF THE FEDERAL TORT CLAIMS ACT, TITLE 28, U.S.C. SECTIONS 2671-2680, IT WAS WELL ESTABLISHED THAT THE UNITED STATES WAS NOT RESPONSIBLE FOR TORTS ARISING FROM THE ACTIONS OF ITS OFFICERS, AGENTS OR EMPLOYEES. BY THAT ACT, THE GOVERNMENT CONSENTS TO BE LIABLE FOR CERTAIN TORTS COMMITTED BY ITS EMPLOYEES AND DESIGNATES THE FORUMS WHERE CLAIMS THEREFOR CAN BE HEARD. THE FEDERAL TORT CLAIMS ACT, AS AMENDED, GIVES THE HEADS OF GOVERNMENT AGENCIES JURISDICTION TO CONSIDER CLAIMS FOR SPECIFIED TORTS OF $2,500 OR LESS ARISING IN THEIR AGENCIES, AND VESTS EXCLUSIVE JURISDICTION OVER CLAIMS FOR GREATER AMOUNTS IN THE DISTRICT COURTS OF THE UNITED STATES. BY SECTION 2733 OF TITLE 10, U.S.C. THE GOVERNMENT CONSENTS TO BE LIABLE IN AN AMOUNT NOT EXCEEDING $5,000 FOR DAMAGE TO, OR LOSS OF (AMONG OTHER THINGS) REAL PROPERTY ARISING INCIDENT TO THE NONCOMBAT ACTIVITIES OF THE MILITARY DEPARTMENTS, WITH EXCLUSIVE AUTHORITY TO SETTLE SUCH CLAIMS VESTED IN THE SECRETARIES CONCERNED. THAT SECTION ALSO AUTHORIZES THE SECRETARY CONCERNED TO REPORT TO CONGRESS FOR CONSIDERATION MERITORIOUS CLAIMS IN EXCESS OF $5,000 THAT WOULD OTHERWISE BE COVERED THEREBY. NO STATUTE CONFERS JURISDICTION UPON OUR OFFICE WITH RESPECT TO TORT CLAIMS IN ANY AMOUNT ARISING IN ANY GOVERNMENT AGENCY OTHER THAN THE GENERAL ACCOUNTING OFFICE. ALSO, SEE UNITED STATES V. ST. LOUIS CLAY PRODUCTS CO., 68 F.SUPP. 902, WHEREIN IT WAS HELD THAT THE GENERAL ACCOUNTING OFFICE HAS NO GENERAL AUTHORITY TO AWARD DAMAGES AS FOR TORT.

THE FIFTH AMENDMENT TO THE CONSTITUTION PROVIDES THAT PRIVATE PROPERTY SHALL NOT BE "TAKEN" FOR PUBLIC USE WITHOUT JUST COMPENSATION. AN IMPLIED CONTRACT TO MAKE PAYMENT THEREFOR HAS BEEN HELD TO ARISE FROM SUCH A "TAKING.' UNITED STATES V. GREAT FALLS MANUFACTURING CO., 112 U.S. 645. WHILE IT SEEMS CLEAR THAT YOUR POND HAS BEEN DAMAGED BY SILT FROM A GOVERNMENT CONSTRUCTION PROJECT, IT HAS BEEN HELD THAT PROOF OF DAMAGE ALONE DOES NOT NECESSARILY PROVE A TAKING BY THE GOVERNMENT. YAZEL V. UNITED STATES, 93 F.SUPP. 1000. ALSO, IN BARTHOLOMAE CORP. V. UNITED STATES, 135 F.SUPP. 651, THE COURT HELD THAT A SINGLE ISOLATED AND UNINTENTIONAL ACT OF THE UNITED STATES RESULTING IN DAMAGE OR DESTRUCTION OF PROPERTY IS NOT A TAKING OF SUCH PROPERTY IN THE CONSTITUTIONAL SENSE. IN ADDITION, IN THE CASE OF SANGUINETTI V. UNITED STATES, 55 CT.CL. 107, THE UNITED STATES COURT OF CLAIMS HELD THAT "WHERE GOVERNMENT WORKS FOR THE IMPROVEMENT OF WATERWAYS HAVE CAUSED DEPOSITS OF DEBRIS ON PRIVATE LANDS, REQUIRING LABOR TO REMOVE; WHERE TREES HAVE BEEN WASHED OUT AND OTHERS DAMAGED; AND A HOUSE RENDERED INACCESSIBLE DURING FLOOD PERIODS, THE INJURY AMOUNTS TO A DEPRECIATION OR CONSEQUENTIAL DAMAGES, AND NOT TO AN APPROPRIATION OF THE PROPERTY BY THE UNITED STATES UNDER THE FIFTH AMENDMENT.' THIS RULING WAS AFFIRMED BY THE SUPREME COURT OF THE UNITED STATES AT 264 U.S. 146.

IN THE LIGHT OF THESE DECISIONS, IT SEEMS APPARENT THAT IT IS AT LEAST EXTREMELY DOUBTFUL THAT THE DAMAGES TO YOUR PROPERTY HERE INVOLVED CONSTITUTE A "TAKING" IN THE CONSTITUTIONAL SENSE. WHERE SUCH DOUBT EXISTS, IT MAY BE RESOLVED ONLY BY THE COURTS. IT IS STATED IN CORPUS JURIS SECUNDUM THAT "WHETHER PRIVATE PROPERTY HAS BEEN TAKEN WITHOUT JUST COMPENSATION IS FOR THE DETERMINATION OF THE COURTS ON THE FACTS OF EACH CASE.' 29 C.J.S. EMINENT DOMAIN 97. SEE CITY OF BALTIMORE V. BALTIMORE MARINE WORKS, 136 A 829; BALTIMORE V. BREGENZER, 93 A 425. ALSO, AS INDICATED ABOVE, THE GOVERNMENT APPRAISER'S ESTIMATE OF THE DAMAGE TO YOUR PROPERTY DIFFERS RADICALLY FROM YOUR CLAIM. IN THIS CONNECTION, THE UNITED STATES COURT OF CLAIMS HAS HELD IN THE CASE OF THE AMERICAN- HAWAIIAN STEAMSHIP CO. V. UNITED STATES, 124 F.SUPP. 378, CERTIORARI DENIED 350 U.S. 863, THAT "ASCERTAINMENT OF JUST COMPENSATION FOR PRIVATE PROPERTY TAKEN FOR PUBLIC USE IS A JUDICIAL AND NOT AN ADMINISTRATIVE FUNCTION, AND NO POWER EXISTS IN ANY ADMINISTRATIVE AGENCY OF THE GOVERNMENT TO DECLARE WHAT THE COMPENSATION SHOULD BE OR TO PRESCRIBE ANY LIMITING RULES IN SUCH REGARD.'

THUS IS APPEARS THAT, IF YOU HAVE A VALID CLAIM AGAINST THE GOVERNMENT, IT IS ONE SOUNDING IN TORT AS TO WHICH OUR OFFICE HAS NO JURISDICTION. EVEN IF THE DAMAGE TO YOUR PROPERTY WERE TO BE CONSIDERED AS A "TAKING" OF PROPERTY, NEITHER THE AMOUNT OF DAMAGE CLAIMED NOR THE LEGAL LIABILITY THEREFOR IS SUFFICIENTLY CERTAIN TO WARRANT SETTLEMENT BY OUR OFFICE. SUCH DOUBTFUL CASES IT IS WELL ESTABLISHED THAT THE ACCOUNTING OFFICERS OF THE GOVERNMENT ARE NOT REQUIRED OR AUTHORIZED TO CERTIFY THE CLAIMS FOR PAYMENT, 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.