B-153212, FEB. 5, 1964

B-153212: Feb 5, 1964

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THIS AMOUNT REPRESENTS THE LOSSES STATED TO HAVE BEEN INCURRED BY YOU INCIDENT TO THE TAKING BY THE UNITED STATES OF SOME 25 1/2 ACRES OF BOTTOM LAND ON PETERS CREEK. THE FACTS GIVING RISE TO THIS MATTER ARE REPORTED HERE AS FOLLOWS. THE TRACT UPON WHICH THE LAND IS LOCATED WAS RECOMMENDED FOR CONDEMNATION ON MARCH 25. SUCH CONDEMNATION WAS INCIDENT TO THE CONSTRUCTION OF A RESERVOIR BY THE UNITED STATES ARMY CORPS OF ENGINEERS. RIGHT OF-ENTRY WAS SECURED FOR A ROAD CONTRACTOR TO COMMENCE WORK. PETITION FOR CONDEMNATION WAS FILED. UPON BEING ADVISED THAT THE ACREAGE IN QUESTION WAS TO BE USED AS A BORROW AREA. THE TRACT IN QUESTION WAS ACQUIRED BY THE UNITED STATES BY DECLARATION OF TAKING.

B-153212, FEB. 5, 1964

TO MR. LOIS HOLDER:

BY LETTER DATED DECEMBER 16, 1963, YOU WROTE TO OUR OFFICE REQUESTING RECONSIDERATION OF OUR CLAIMS SETTLEMENT Z-2246024, OCTOBER 16, 1963. THAT ACTION WE DENIED YOUR CLAIM FOR $1,080. THIS AMOUNT REPRESENTS THE LOSSES STATED TO HAVE BEEN INCURRED BY YOU INCIDENT TO THE TAKING BY THE UNITED STATES OF SOME 25 1/2 ACRES OF BOTTOM LAND ON PETERS CREEK, LUCAS, KENTUCKY, UPON WHICH YOU INTENDED TO PLANT AND HARVEST A CORN CROP IN 1962. THE FACTS GIVING RISE TO THIS MATTER ARE REPORTED HERE AS FOLLOWS. THE TRACT UPON WHICH THE LAND IS LOCATED WAS RECOMMENDED FOR CONDEMNATION ON MARCH 25, 1962. SUCH CONDEMNATION WAS INCIDENT TO THE CONSTRUCTION OF A RESERVOIR BY THE UNITED STATES ARMY CORPS OF ENGINEERS. ON APRIL 24, 1962, RIGHT OF-ENTRY WAS SECURED FOR A ROAD CONTRACTOR TO COMMENCE WORK. ON MAY 21, 1962, PETITION FOR CONDEMNATION WAS FILED. ON OR ABOUT MAY 1, 1962, YOU PREPARED THE LANDIN QUESTION FOR A CORN CROP BUT, UPON BEING ADVISED THAT THE ACREAGE IN QUESTION WAS TO BE USED AS A BORROW AREA, YOU DID NOT SEED THE PROPOSED CROP. ON JUNE 16, 1962, THE CONTRACTOR STRIPPED THE LAND.

THE TRACT IN QUESTION WAS ACQUIRED BY THE UNITED STATES BY DECLARATION OF TAKING, FILED MAY 18, 1962, CIVIL ACTION 864, IN THE UNITED STATES DISTRICT COURT FOR WESTERN KENTUCKY. ON MAY 25, 1962, YOU AND YOUR WIFE ENTERED INTO A STIPULATION WITH THE UNITED STATES WHEREIN, IN PARTIAL CONSIDERATION OF YOUR RIGHT TO REMAIN IN POSSESSION OF THE LAND UNTIL DECEMBER 31, 1962, YOU AGREED TO RELEASE AND DISCHARGE THE UNITED STATES FROM ANY AND ALL CLAIMS OF DAMAGE TO THE LAND OR ANY CROP THEREON BY REASON OF THE ENTRANCE OF THE UNITED STATES ONTO SUCH LAND FOR CLEARING PURPOSES. THE PERTINENT PART, WHICH APPEARS ON PAGE THREE OF THE STIPULATION, READS AS FOLLOWS:

"* * * AS A PART OF THE CONSIDERATION FOR THE EXECUTION OF THIS STIPULATION BY THE PLAINTIFF, THE DEFENDANTS, AND EACH OF THEM, AGREE WITH THE PLAINTIFF THAT THE PLAINTIFF IS RELEASED AND DISCHARGED FROM ANY AND ALL CLAIMS OF DAMAGES TO THE LAND OR ANY CROPS THEREON, OR TO THE DEFENDANTS, AND TO EACH OF THEM, AND TO ANY OTHER PERSON ON SAID LAND BY REASON OF THE ENTRANCE OF THE PLAINTIFF AND/OR ITS AGENTS OR CONTRACTORS ONTO SAID LAND FOR CLEARING PURPOSES DURING THE PERIOD OF TIME THE DEFENDANTS AND EACH OF THEM, ARE IN POSSESSION THEREOF, OR BY REASON OF THE FLOODING AT ANY TIME OF SAID LAND BY THE PLAINTIFF, WITH THE DEFENDANTS, AND EACH OF THEM, HEREBY EXPRESSLY AGREEING THAT THE PLAINTIFF, AS A PART OF THE CONSIDERATION FOR ITS EXECUTION OF THIS STIPULATION, SHALL BE INDEMNIFIED AND SAVED HARMLESS BY THE DEFENDANTS, AND EACH OF THEM, FROM PAYMENT OF ANY CLAIM MADE BY ANY PERSON, OR JUDGMENT FOR DAMAGES RENDERED IN FAVOR OF ANY PERSON AS A RESULT OF DAMAGES SUSTAINED BY THE DEFENDANTS, AND EACH OF THEM, OR BY SUCH OTHER PERSON WHILE THE DEFENDANTS, AND EACH OF THEM, ARE IN POSSESSION OF SAID TRACTS BY REASON OF THE CLEARING OF SAID LAND BY THE PLAINTIFF AND/OR ITS AGENTS OR CONTRACTORS, OR BY FLOODING OF SAID LAND BY THE PLAINTIFF AT ANY TIME * * *.'

WHILE IT MAY BE, AS STATED IN YOUR LETTER OF DECEMBER 16, 1963, THAT YOU MISTAKENLY SIGNED THE STIPULATION WITH THE UNDERSTANDING THAT YOUR CORN CROP COULD BE COMPLETED OR PAID FOR IF DESTROYED, THE STIPULATION THAT YOU EXECUTED IS COMPLETE IN ITSELF AND REPRESENTS THE WHOLE OF THE CONSIDERATION FOR THE TAKING OF THE LAND BY THE UNITED STATES. ACCORDINGLY, INASMUCH AS THE STIPULATION SAVES THE UNITED STATES HARMLESS AGAINST ANY ADDITIONAL CLAIMS INVOLVING THE LAND, OUR ACTION OF OCTOBER 16, 1963, IS SUSTAINED AND YOUR CLAIM IS DENIED.