B-154994, NOV. 22, 1966

B-154994, NOV. 22, 1966

TO SHIPLEY, AKERMAN AND PICKETT:

YOUR LETTER OF OCTOBER 19, 1966, CONSTITUTES AN APPEAL TO SETTLEMENT OF OUR CLAIMS DIVISION DATED OCTOBER 17, 1966. THE SETTLEMENT, IN EFFECT, HELD THAT WE HAD NO JURISDICTION OF CERTAIN CLAIMS FOR DAMAGES PRESENTED HERE BY YOU ON BEHALF OF ALFORD ADAMS AND FORTY-SIX OTHERS, SINCE THE CLAIMS SOUNDED IN TORT OR WERE FOR UNLIQUIDATED DAMAGES.

THESE CLAIMS WERE ORIGINALLY FILED HERE ON DECEMBER 15, 1964, TO TOLL OUR 10 YEAR STATUTE OF LIMITATIONS PENDING A DETERMINATION AS TO WHETHER THE COURT OF CLAIMS HAD JURISDICTION TO CONSIDER THE MATTER DUE TO ITS SIX YEAR STATUTE OF LIMITATIONS.

THE RECORD DISCLOSES THAT THE CLAIMANTS OWN AND LIVE IN RESIDENCES LOCATED IN OR NEAR THE FAIR OAKS SECTION OF MARIETTA, GEORGIA, WHICH IS ADJACENT TO THE DOBBINS AIR FORCE BASE. ON JULY 31, 1964, THE CLAIMANTS (PLAINTIFFS) FILED A PETITION IN THE COURT OF CLAIMS (ADAMS, ET AL. V. UNITED STATES, NO. 247-64) ALLEGING THAT THE FREQUENT AND LOW FLIGHTS OF "DEFENDANTS' AIRCRAFT OVER PLAINTIFFS' LANDS DEPRIVE THEM OF THEIR PROPERTY WITHOUT JUST COMPENSATION AND AMOUNT TO THE TAKING OF AN AVIGATION EASEMENT WITHOUT PAYMENT THEREFOR.' ON OCTOBER 10, 1966, IT WAS STIPULATED BETWEEN THE PARTIES THAT THE PLAINTIFFS' PETITION COULD BE DISMISSED WITH PREJUDICE ON THE BASIS THAT THE CLAIMS WERE BARRED BY THE STATUTE OF LIMITATIONS. (THE COURT OF CLAIMS SIX YEAR STATUTE OF LIMITATION). THE "STIPULATION OF DISMISSAL" WAS FILED WITH THE COURT ON OCTOBER 13, 1966, AND THE CLERK DISMISSED THE PETITION PURSUANT TO RULE 67.

IN YOUR LETTER YOU STATE THAT THE CLAIMS INVOLVED RESULTED FROM A FIFTH AMENDMENT "TAKING" AND THE DOLLAR VALUE OF THE TAKINGS HAS BEEN ADMITTED BY THE GOVERNMENT IN ITS SETTLEMENT IN THE ALLGOOD CASE, INVOLVING THE SAME AIRPORT, THE SAME SUBDIVISION AND THE SAME "TAKING.' YOU STATE THAT "IT IS A SIMPLE MECHANICAL AND ARITHMETICAL CALCULATION, SO THAT THE CLAIMS ARE IN SUBSTANCE LIQUIDATED.'

YOU EXPRESS THE VIEW THAT UNDER THESE CIRCUMSTANCES WE HAVE JURISDICTION "AND SHOULD ENTER JUDGMENT IN BEHALF OF THE VARIOUS PLAINTIFFS.'

ON MARCH 13, 1959, A PETITION WAS FILED IN THE COURT OF CLAIMS INAN ACTION ENTITLED, ALLGOOD ET AL. V. UNITED STATES, NO. 122-59. THE ACTION WAS INSTITUTED BY 84 GROUPS OF PLAINTIFFS TO RECOVER DAMAGES TOTALING MORE THAN $1,000,000 REPRESENTING THE DEPRECIATION IN VALUE OF THE PLAINTIFFS' PROPERTIES IN COBB COUNTY, GEORGIA, WHICH WAS ALLEGEDLY CAUSED BY LOW AND FREQUENT FLIGHTS OF MILITARY AIRCRAFT OPERATING FROM DOBBINS AIR FORCE BASE.

BY LETTER DATED MARCH 22, 1963, THE ATTORNEY FOR THE PLAINTIFFS SUBMITTED SEPARATE OFFERS TOTALING $88,210 IN BEHALF OF THE 42 PLAINTIFFS WHOSE PROPERTIES WERE LOCATED WHOLLY OR PARTIALLY WITHIN THE APPROACH ZONE TO THE EAST-WEST RUNWAY AT THE AIR BASE IN FULL SETTLEMENT OF THEIR CLAIMS FOR COMPENSATION. AS PART OF THE SETTLEMENT THE 42 PLAINTIFFS IN WHOSE BEHALF THE OFFERS WERE MADE AGREED TO EXECUTE AND DELIVER TO THE UNITED STATES APPROPRIATE AVIGATION EASEMENTS OVER THEIR PROPERTIES. IN ADDITION IT WAS AGREED THAT IF THE OFFERS WERE ACCEPTED THE CLAIMS OF THE REMAINING 42 PLAINTIFFS WOULD BE DISMISSED.

ON MAY 29, 1963, THE OFFERS WERE DULY ACCEPTED BY THE DEFENDANT AND THEREAFTER ALL BUT TWO OF THE AVIGATION EASEMENTS CONTEMPLATED BY THE OFFERS WERE EXECUTED AND DELIVERED TO THE DEFENDANT.

A STIPULATION OF THE PARTIES IN ACCORDANCE WITH THE FOREGOING WAS FILED WITH THE COURT ON DECEMBER 12, 1963. ON DECEMBER 20, 1963, THE COURT ENTERED AN ORDER PURSUANT TO THE TERMS OF THE STIPULATION BETWEEN THE PARTIES IN COMPROMISE OF THE LITIGATION. IT IS SPECIFICALLY PROVIDED IN THE STIPULATION THAT IT WAS MADE SOLELY FOR THE PURPOSE OF ENABLING THE COURT TO ENTER JUDGMENT IN CONFORMITY WITH THE SETTLEMENTS.

THE "STIPULATION OF SETTLEMENT" WAS BETWEEN REPRESENTATIVES OF THE DEPARTMENT OF JUSTICE AND THE ATTORNEY FOR THE PLAINTIFFS AND THIS OFFICE WAS NOT A PARTY THERETO. MOREOVER, THERE IS NOTHING IN THE "STIPULATION OF SETTLEMENT" CONCERNING THE BASIS FOR ARRIVING AT THE AMOUNTS OF THE SETTLEMENTS AGREED UPON.

WE ASSUME THAT ALL THE CLAIMS OF THE 84 GROUPS OF PLAINTIFFS IN THE ALLGOOD CASE INVOLVED THE ,SAME AIRPORT, THE SAME SUBDIVISION, AND THE SAME "TAKING.'" HOWEVER, IT WAS AGREED IN THE STIPULATION IN THAT CASE THAT THE CLAIMS OF 42 CLAIMANTS THEREIN WOULD BE DISMISSED. THUS, THE FACT THAT THE CLAIMANTS YOU REPRESENT LIVE IN THE SAME SUBDIVISION AS THOSE INVOLVED IN THE ALLGOOD CASE DOES NOT NECESSARILY REQUIRE THE CONCLUSION THERE WAS A "TAKING" INSOFAR AS THEIR PROPERTY IS CONCERNED. ALSO, WHILE IT MAY BE THAT THE AMOUNTS AGREED TO IN THE STIPULATION WERE BASED IN PART ON THE DIMINUTION IN VALUE OF THE PROPERTIES INVOLVED AS A RESULT OF THE LOW AND FREQUENT FLIGHTS OF MILITARY AIRCRAFT FROM DOBBINS AIR FORCE BASE, IT FURTHER APPEARS THAT THE PLAINTIFFS WERE REQUIRED TO EXECUTE AND DELIVER TO THE UNITED STATES APPROPRIATE AVIGATION EASEMENTS OVER THEIR PROPERTIES.

IN ANY EVENT WE HAVE NO KNOWLEDGE OF, AND ARE NOT IN A POSITION TO DETERMINE THE VALUE OF THE PROPERTY OF THE CLAIMANTS YOU REPRESENT, OR TO DETERMINE WHETHER SUCH VALUE HAS BEEN DIMINISHED BY FLIGHTS FROM THE AIR FORCE BASE INVOLVED. FURTHER, IT GENERALLY IS IMPRACTICABLE FOR ACCOUNTING OFFICERS TO DETERMINE SUCH QUESTIONS. WE MIGHT POINT OUT THAT IN THE ALLGOOD CASE THE ,STIPULATION OF SETTLEMENT" INDICATES THAT ONLY THOSE PLAINTIFFS WHOSE PROPERTIES WERE LOCATED ,WHOLLY OR PARTIALLY WITHIN THE APPROACH ZONE TO THE EAST-WEST RUNWAY AT THE AIR BASE" RECEIVED SETTLEMENTS.

IN LIGHT OF THE FOREGOING, AND ASSUMING BUT NOT DECIDING THAT WE WOULD OTHERWISE HAVE JURISDICTION OF THE INSTANT CLAIMS, WE WOULD HAVE NO BASIS FOR ALLOWING SUCH CLAIMS, SINCE THE EVIDENCE OF RECORD IS NOT SUFFICIENT TO ESTABLISH A "TAKING" OR--- ASSUMING THERE HAS BEEN A TAKING--- TO ESTABLISH THE AMOUNT OF DAMAGES SUSTAINED ON ACCOUNT OF THE TAKING.

IN CONNECTION WITH THE QUESTION OF JURISDICTION, BY SECTION 2733 OF TITLE 10, UNITED STATES CODE, 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. A CLAIM MAY BE ALLOWED UNDER 10 U.S.C. 2733 ONLY IF PRESENTED IN WRITING TWO YEARS AFTER IT ACCRUES WITH CERTAIN EXCEPTIONS APPARENTLY NOT PERTINENT HERE.