B-158801, MAY 9, 1966

B-158801, MAY 9, 1966

TO THE SECRETARY OF AGRICULTURE:

REFERENCE IS MADE TO A LETTER OF MARCH 24, 1966, WITH ENCLOSURES, FROM MR. NEAL M. RAHM, REGIONAL FORESTER, FOREST SERVICE, NORTHERN REGION, MISSOULA, MONTANA, REQUESTING A DECISION AS TO WHETHER AN AGREEMENT ENTERED INTO ON SEPTEMBER 23, 1963, BETWEEN THE UNITED STATES, ACTING THROUGH THE ACTING REGIONAL FORESTER, FOREST SERVICE, DEPARTMENT OF AGRICULTURE AND THE DIAMOND NATIONAL CORPORATION (NOW DIAMOND INTERNATIONAL CORPORATION) MAY BE REFORMED TO STATE THE ACTUAL INTENT OF THE PARTIES. THE AGREEMENT WAS MADE FOR THE PURPOSE OF SHARING THE COST OF CONSTRUCTING A ROAD THAT WOULD SERVE INTERMINGLED NATIONAL FOREST LAND AND DIAMOND INTERNATIONAL CORPORATION LANDS IN CLEARWATER COUNTY, IDAHO.

THE ADMINISTRATIVE REPORT STATES THAT A SHORT-FORM AGREEMENT WAS USED BECAUSE DIAMOND INTERNATIONAL CORPORATION WAS READY TO CONSTRUCT THE ROAD, BUT ALL OF THE DETAILED INFORMATION NECESSARY FOR PREPARING A SPECIFICALLY DETAILED AGREEMENT WAS NOT KNOWN. THE BASIC PURPOSE OF THE SHORT-FORM AGREEMENT WAS TO ASSURE THE COOPERATOR THAT HIS CONSTRUCTION COSTS ON THOSE SEGMENTS OF ROAD LOCATED ON NATIONAL FOREST LANDS WOULD BE CONSIDERED AS BEING INCURRED UNDER THE COOPERATIVE AGREEMENT IF SUCH AGREEMENT WAS SUBSEQUENTLY ENTERED INTO WITH THE FOREST SERVICE. IT IS STATED FURTHER THAT THE INTENT OF THE AGREEMENT WAS FOR DIAMOND INTERNATIONAL CORPORATION TO SHARE IN THE COST OF CONSTRUCTING THE SEGMENT OF THE COMET CREEK ROAD THAT WOULD SERVE ITS LANDS. HOWEVER, EXHIBIT A (MAP) OF THE AGREEMENT SHOWED THE APPROXIMATE LOCATION OF THE ENTIRE LENGTH OF THE ROAD TO BE CONSTRUCTED. THIS, TOGETHER WITH THE WORDING OF THE AGREEMENT, IS INTERPRETED AS INDICATING THAT DIAMOND INTERNATIONAL CORPORATION WOULD SHARE IN THE COST OF CONSTRUCTING THE ENTIRE ROAD EVEN THOUGH THE ROAD BEYOND THE WEST LINE OF SECTION 1, T. 40 N; R. 10 E., B.M., DID NOT SERVE ITS OWNERSHIP.

CLAUSE A (VI) OF THE SHORT-FORM AGREEMENT STATES THE INTENT TO SUPERSEDE THE SHORT-FORM AGREEMENT WITH THE FOREST SERVICE--- NORTHERN PACIFIC AGREEMENT FORM. THE FACTS NEEDED FOR WRITING THE FOREST SERVICE-NORTHERN PACIFIC FORM OF AGREEMENT ARE NOW AVAILABLE. IN WRITING THE AGREEMENT, THE CONTRACTING OFFICER PROPOSES TO CORRECTLY STATE THE INTENT OF THE PARTIES TO COST-SHARE THE SEGMENT OF COMET CREEK ROAD FROM ITS JUNCTION WITH ROAD NO. 250 IN THE NE1/4SE1/4, SECTION 6, T. 40 N., R. 11 E., B.M., TO WEST LINE OF SECTION 1, T. 40 N., R. 10 E., B.M. BEYOND THIS POINT, CONSTRUCTION WOULD BE AT THE EXPENSE OF THE UNITED STATES SINCE ONLY NATIONAL FOREST LAND WILL BE SERVED BY THE ROAD.

WHERE, BY REASON OF A MUTUAL MISTAKE IN OMITTING FROM A CONTRACT A MATERIAL PROVISION ON WHICH THE PARTIES PREVIOUSLY HAD AGREED, THE CONTRACT, AS REDUCED TO WRITING, DOES NOT REFLECT THE ACTUAL AGREEMENT OF THE PARTIES, SUCH MISTAKE IS GROUND FOR REFORMING THE WRITTEN INSTRUMENT IF IT CAN BE ESTABLISHED WHAT THE CONTRACT ACTUALLY WAS OR WOULD HAVE BEEN BUT FOR THE MISTAKE. 30 COMP. GEN. 220; 26 ID. 899; 37 ID. 688; 20 ID. 533, 537. THE PURPOSE OF REFORMATION IS NOT TO MAKE A NEW AGREEMENT BETWEEN THE PARTIES, BUT, RATHER TO ESTABLISH THE ALREADY EXISTING ONE. IN ORDER TO JUSTIFY THE REFORMATION OF ANY INSTRUMENT, THE MUTUAL MISTAKE MUST HAVE BEEN IN DRAWING THE INSTRUMENT AND NOT IN MAKING THE CONTRACT OUT OF WHICH IT GREW OR WHICH IT EVIDENCES. SEE 76 C.J.S., REFORMATION OF INSTRUMENTS, SEC. 25 (C), AND AUTHORITIES THERE CITED.

THE RECORD CONTAINS A STATEMENT DATED JANUARY 28, 1966, FROM MR. E. F. BARRY, ACTING REGIONAL FORESTER, WHO SIGNED THE SHORT-FORM AGREEMENT, AS THE REPRESENTATIVE OF THE GOVERNMENT, STATING THAT IT WAS THE INTENT OF THE COOPERATING PARTIES THAT EACH WOULD SHARE IN THE COST OF CONSTRUCTING SEGMENTS OF ROADS NEEDED TO SERVE ITS PARTICULAR OWNERSHIP. HOWEVER, CLAUSE II AND EXHIBIT A OF SAID AGREEMENT DO NOT CLEARLY STATE OR INDICATE SUCH INTENT. MR. BARRY STATES THAT THE ENTIRE LENGTH OF THE PROPOSED ROAD WAS SHOWN ON EXHIBIT A FOR THE PURPOSE OF INDICATING THE AREA AND LOCATION OF OWNERSHIPS TRIBUTARY TO THE ENTIRE ROAD SYSTEM. IT WAS NOT INTENDED TO INDICATE THE SEGMENTS TO BE COST-SHARED. MR. M. E. JONES, VICE PRESIDENT OF DIAMOND INTERNATIONAL CORPORATION INDICATES IN A STATEMENT DATED FEBRUARY 2, 1966, THAT IT WAS THE INTENT OF DIAMOND INTERNATIONAL CORPORATION TO SHARE IN THE COST OF CONSTRUCTING THOSE SEGMENTS OF ROAD SERVING COMPANY-OWNED LANDS. IT WAS NEVER THE INTENT OF THE COMPANY TO SHARE IN THE COST OF CONSTRUCTING THOSE SEGMENTS OF ROAD THAT DID NOT SERVE COMPANY-OWNED LANDS.

IN VIEW OF THE EVIDENCE SUBMITTED WHICH INDICATES WHAT THE ACTUAL INTENT OF THE PARTIES WAS AT THE TIME THEY ENTERED INTO THE SHORT-FORM AGREEMENT, WE THINK THAT REFORMATION OF THE AGREEMENT TO STATE THE INTENT OF THE PARTIES TO COST-SHARE THE SEGMENT OF COMET CREEK ROAD FROM ITS JUNCTION WITH ROAD NO. 250 IN THE NE1/4SE1/4, SECTION 6, T.40 N; R. 11 E., B.M., TO WEST LINE OF SECTION 1, T. 40 N., R. 10 E., B.M., IS PROPER.

ACCORDINGLY, IT IS THE OPINION OF THIS OFFICE THAT THE AGREEMENT OF THE PARTIES MAY BE REFORMED AS REQUESTED.