B-156967, JUN. 25, 1965

B-156967: Jun 25, 1965

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THIS SUM IS SUBMITTED AS DAMAGE ALLEGEDLY RESULTING FROM THE IMPROVEMENT OF A COUNTY ROAD. THE FACTS GIVING RISE TO THIS MATTER ARE REPORTED HERE AS FOLLOWS. THIS PETITION WAS DENIED. WHILE IT IS YOUR CONTENTION THAT THE IMPROVEMENT OF THIS ROAD. THE DEPARTMENT OF THE ARMY ADVISES THAT THERE IS NO LEGAL REQUIREMENT THAT THE LAND ADJACENT TO THE ROAD BE FENCED AND THAT TRAFFIC OVER THE ROAD HAS NOT INCREASED APPRECIABLY BECAUSE OF THE MISSILE SITES IN THE AREA. WE ARE NOT STAFFED TO MAKE A TRAFFIC SURVEY OF THE TYPE SUGGESTED BY MR. WE ARE OF THE OPINION THAT ANY REIMBURSEMENT DUE MUST COME FROM WHEATLAND COUNTY. WHILE THE UPGRADING OF THE ROAD INVOLVED WAS OCCASIONED BY THE NEED FOR ALL-WEATHER ROADS TO THE FEDERAL MISSILE SITES.

B-156967, JUN. 25, 1965

TO MRS. ESTIL L. MOWRE:

BY LETTER DATED JUNE 1, 1965, MR. CLYDE P. LUCAS OF JUDITH GAP, MONTANA, WROTE TO OUR OFFICE IN YOUR BEHALF REQUESTING RECONSIDERATION OF OUR CLAIMS SETTLEMENT Z-2277008, DECEMBER 8, 1964, BY WHICH WE DENIED YOUR CLAIM FOR $1,400. THIS SUM IS SUBMITTED AS DAMAGE ALLEGEDLY RESULTING FROM THE IMPROVEMENT OF A COUNTY ROAD, WITH THE ASSISTANCE OF THE UNITED STATES, IN CONNECTION WITH THE MAELSTROM AIR FORCE MISSILE FACILITY, MONTANA.

THE FACTS GIVING RISE TO THIS MATTER ARE REPORTED HERE AS FOLLOWS. THE IMPROVED ROAD RUNS DIAGONALLY ACROSS YOUR PROPERTY IN WHEATLAND COUNTY, MONTANA, AND HAS BEEN IN CONTINUOUS USE SINCE ITS ESTABLISHMENT IN AUGUST 1951. IN SEPTEMBER, 1962, YOU AND MR. CLYDE LUCAS FORMALLY PETITIONED THE WHEATLAND COUNTY BOARD OF COUNTY COMMISSIONERS REQUESTING THAT THE ROAD BE RELOCATED. THIS PETITION WAS DENIED. SUBSEQUENTLY, BECAUSE OF THE LOCATION OF MISSILE SITES IN THE AREA, THE UNITED STATES--- IN COOPERATION WITH WHEATLAND COUNTY--- ASSISTED IN THE IMPROVEMENT OF THE SUBJECT ROAD AS A PART OF THE ROAD NET IN THE AREA TO ENABLE ALL-WEATHER ACCESS TO MISSILE SITES IN THE VICINITY. ON MAY 10, 1962, YOU AND CLYDE LUCAS GRANTED AN EASEMENT, CONVEYING 7/10 OF AN ACRE, TO WIDEN THE ROAD IN CONNECTION WITH THIS ROAD IMPROVEMENT.

WHILE IT IS YOUR CONTENTION THAT THE IMPROVEMENT OF THIS ROAD, ITS CONTINUED MAINTENANCE, AND ATTENDANT INCREASED TRAFFIC THEREON HAS NECESSITATED YOUR FENCING PART OF YOUR PROPERTY AND CAUSED A PERMANENT DIMINUTION IN VALUE OF THE LAND, THE DEPARTMENT OF THE ARMY ADVISES THAT THERE IS NO LEGAL REQUIREMENT THAT THE LAND ADJACENT TO THE ROAD BE FENCED AND THAT TRAFFIC OVER THE ROAD HAS NOT INCREASED APPRECIABLY BECAUSE OF THE MISSILE SITES IN THE AREA.

IN MR. LUCAS' LETTER OF JUNE 1, 1965, HE STATED THAT "YOU PEOPLE (THE GENERAL ACCOUNTING OFFICE) MAY READILY VERIFY THE TREMENDOUS INCREASE OF TRAFFIC ON THIS ROAD BY PUTTING A CHECK DOWN THERE TO COUNT THE MISSILE RELATED VEHICLES THAT TRAVERSE THIS PROPERTY.' WE ARE NOT STAFFED TO MAKE A TRAFFIC SURVEY OF THE TYPE SUGGESTED BY MR. LUCAS, AND WE MUST MAKE OUR DECISIONS ON THE BASIS OF THE WRITTEN RECORD.

IN CASES WHERE THE FACTS AS REPORTED BY THE CLAIMANT AND AN ADMINISTRATIVE OFFICER CONFLICT, WE MUST ACCEPT THE FACTS AS ADMINISTRATIVELY REPORTED IN THE ABSENCE OF CLEAR ERROR IN THE FACTS AS ADMINISTRATIVELY REPORTED. MOREOVER, ASSUMING--- WITHOUT DECIDING-- A REIMBURSABLE BASIS FOR YOUR CLAIM, WE ARE OF THE OPINION THAT ANY REIMBURSEMENT DUE MUST COME FROM WHEATLAND COUNTY, MONTANA, AND NOT THE UNITED STATES GOVERNMENT. WHILE THE UPGRADING OF THE ROAD INVOLVED WAS OCCASIONED BY THE NEED FOR ALL-WEATHER ROADS TO THE FEDERAL MISSILE SITES, THE ROAD IS A COUNTY ROAD AND HAS BEEN IN EXISTENCE SINCE AUGUST 1951, WHEN AN EASEMENT WAS GRANTED FOR THE ROAD BY A PREVIOUS OWNER OF YOUR PROPERTY.

UNDER THE CIRCUMSTANCES, WE MUST ADVISE THAT WE PERCEIVE NO LEGAL BASIS TO ALLOW YOUR CLAIM AND, ACCORDINGLY, OUR PREVIOUS ACTION IN THE MATTER IS SUSTAINED.