B-162683, OCT. 30, 1967

B-162683: Oct 30, 1967

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OF ARMY APPRAISERS INDICATE DOES NOT EXCEED $50 MUST BE DISALLOWED SINCE AMOUNT OF ACTUAL DAMAGES IN QUESTION OF FACT AND IN ABSENCE OF EVIDENCE THAT THE DAMAGES WERE MORE THAN $50 PAYMENT IS NOT AUTHORIZED. HAVE BEEN FORWARDED HERE BY THE DEPARTMENT OF THE ARMY. IN YOUR LETTER RETURNING THE CHECK YOU STATE THAT THE AMOUNT OFFERED IN SETTLEMENT OF YOUR CLAIM IS NOT SATISFACTORY. IT WAS MUTUALLY AGREED THAT PURSUANT TO THE AGREEMENT OF APRIL 23. YOU WERE ENTITLED TO THE SUM OF $85 "AS FULL PAYMENT AND CONSIDERATION FOR DAMAGES CAUSED TO DATE BY REASON OF GOVERNMENT ACTIVITIES ON SAID LAND. THE RECEIPT OF WHICH IS HEREBY ACKNOWLEDGED.'. A SECOND SUPPLEMENTAL AGREEMENT TO THE RIGHT-OF-WAY AGREEMENT WAS ENTERED INTO WHEREIN.

B-162683, OCT. 30, 1967

EASEMENTS, RIGHTS - OF-WAY - DAMAGE CLAIMS DECISION TO JAMES RUSH FOR CLAIM FOR DAMAGES OF $400 BASED ON A RIGHT-OF- ENTRY AGREEMENT IN CONNECTION WITH CONSTRUCTION OF A COMMUNICATION CABLE LINE FOR WHITEMAN AIR FORCE BASE INTERSITE COMMUNICATIONS SYSTEM. CLAIM OF $400 FOR DAMAGES INCIDENT TO RIGHT-OF-WAY WHICH DEPT. OF ARMY APPRAISERS INDICATE DOES NOT EXCEED $50 MUST BE DISALLOWED SINCE AMOUNT OF ACTUAL DAMAGES IN QUESTION OF FACT AND IN ABSENCE OF EVIDENCE THAT THE DAMAGES WERE MORE THAN $50 PAYMENT IS NOT AUTHORIZED.

TO MR. JAMES RUSH:

YOUR LETTER OF AUGUST 30, 1967, AND TREASURY CHECK NO. 45,820 DATED OCTOBER 21, 1966, MADE PAYABLE TO YOU IN THE SUM OF $50, ENCLOSED THEREWITH, HAVE BEEN FORWARDED HERE BY THE DEPARTMENT OF THE ARMY, CORPS OF ENGINEERS.

THE CHECK HAD BEEN MAILED TO YOU BY THE DEPARTMENT OF THE ARMY IN FULL AND FINAL SETTLEMENT OF YOUR CLAIM FOR DAMAGES OF $400 BASED UPON A RIGHT- OF-ENTRY AGREEMENT IN CONNECTION WITH CONSTRUCTION OF A COMMUNICATION CABLE LINE FOR THE WHITEMAN AIR FORCE BASE INTERSITE COMMUNICATIONS SYSTEM. PRIOR TO ISSUANCE OF THE CHECK THE DEPARTMENT OF THE ARMY HAD FORWARDED YOUR CLAIM TO OUR CLAIMS DIVISION FOR CERTIFICATION OF THE AMOUNT DETERMINED TO BE PAYABLE TO YOU. IN YOUR LETTER RETURNING THE CHECK YOU STATE THAT THE AMOUNT OFFERED IN SETTLEMENT OF YOUR CLAIM IS NOT SATISFACTORY.

THE RECORD DISCLOSES THAT ON APRIL 23, 1962, YOU GRANTED TO THE UNITED STATES A RIGHT OF ENTRY ONTO CERTAIN LAND OWNED BY YOU SO THAT THE UNITED STATES MIGHT SURVEY, EXPLORE AND CONSTRUCT A CABLE LINE AND APPURTENANCES THEREON. THE AGREEMENT PROVIDED THAT THE GOVERNMENT WOULD BE RESPONSIBLE FOR ALL DAMAGES CAUSED TO THE LAND BY ACTIVITIES PROVIDED FOR THEREIN. SUBSEQUENTLY, ON FEBRUARY 4, 1964, IN ACCORDANCE WITH PARAGRAPH 3 OF THAT AGREEMENT, THE PARTIES ENTERED INTO A NEW AGREEMENT WHEREBY THE GOVERNMENT IN RETURN FOR THE PAYMENT OF $267 RECEIVED A PERMANENT RIGHT-OF-WAY EASEMENT FOR THE CABLE LINE AND APPURTENANCES UNDER A NARROW STRIP OF LAND RUNNING ACROSS YOUR PROPERTY AND AGREED TO BE RESPONSIBLE FOR ANY FUTURE DAMAGES THAT MIGHT RESULT FROM THE EXERCISE OF ITS RIGHTS UNDER SUCH EASEMENT. BY SUPPLEMENTAL AGREEMENT ALSO DATED FEBRUARY 4, 1964, IT WAS MUTUALLY AGREED THAT PURSUANT TO THE AGREEMENT OF APRIL 23, 1962, YOU WERE ENTITLED TO THE SUM OF $85 "AS FULL PAYMENT AND CONSIDERATION FOR DAMAGES CAUSED TO DATE BY REASON OF GOVERNMENT ACTIVITIES ON SAID LAND, THE RECEIPT OF WHICH IS HEREBY ACKNOWLEDGED.'

ON NOVEMBER 10, 1964, FOLLOWING THE REMOVAL OF SURFACE ROCK FROM THE LAND, THE GOVERNMENT CONTRACTOR SETTLED A CLAIM FOR DAMAGES IN THE AMOUNT OF $30. THIS SETTLEMENT PROVIDED FOR A FINAL RELEASE OF ALL CLAIMS AGAINST THE CONTRACTOR BUT SPECIFICALLY EXCLUDED FROM THE RELEASE ANY GOVERNMENT LIABILITY FOR DAMAGES TO THE RIGHT-OF-WAY STRIP.

THEREAFTER, ON APRIL 22, 1965, A SECOND SUPPLEMENTAL AGREEMENT TO THE RIGHT-OF-WAY AGREEMENT WAS ENTERED INTO WHEREIN, IN SETTLEMENT OF DAMAGES CAUSED BY CONTRACTOR'S REENTRY UPON THE LAND, YOU ACCEPTED PAYMENT OF $87 AND YOUR TENANT ACCEPTED PAYMENT OF $28 "AS FULL PAYMENT AND CONSIDERATION FOR DAMAGES CAUSED TO DATE BY REASON OF GOVERNMENT ACTIVITIES ON SAID LAND, THE RECEIPT OF WHICH IS HEREBY ACKNOWLEDGED.'

NOTWITHSTANDING THE RELEASES CONTAINED IN THE TWO SUPPLEMENTAL AGREEMENTS REFERRED TO ABOVE, YOU SUBMITTED A WRITTEN CLAIM FOR DAMAGES IN THE SUM OF $400 UNDER DATE OF JULY 22, 1965. THIS IS STATED TO BE THE COST OF REMOVING ROCK FROM THE RIGHT-OF-WAY AREA THAT ALLEGEDLY WAS RAISED TO PLOW AND CULTIVATOR DEPTH AS THE RESULT OF BLASTING AND DIGGING WHEN THE CABLE WAS INSTALLED.

BY LETTER OF SEPTEMBER 17, 1965, THE DEPARTMENT OF THE ARMY REFERRED TO THE RELEASE CONTAINED IN THE SETTLEMENT ENTERED INTO BETWEEN YOU AND THE GOVERNMENT CONTRACTOR DATED NOVEMBER 10, 1964, AND THE RELEASE CONTAINED IN THE SECOND SUPPLEMENTAL AGREEMENT ENTERED INTO APRIL 22, 1965, AND DISALLOWED YOUR CLAIM ON THE BASIS THAT IT WAS COVERED BY SUCH RELEASES.

BY LETTER OF SEPTEMBER 29, 1965, YOU PROTESTED THE DISALLOWANCE OF YOUR CLAIM ON THE BASIS THAT THE RELEASE GIVEN TO THE GOVERNMENT CONTRACTOR SPECIFICALLY EXCLUDED GOVERNMENT LIABILITY FOR DAMAGE TO THE RIGHT-OF-WAY STRIP AND THAT THE PAYMENT PROVIDED FOR BY THE SECOND SUPPLEMENTAL AGREEMENT EXECUTED APRIL 22, 1965, COVERED DAMAGES TO THAT DATE FOR SEVERAL SPECIFIC ITEMS BUT DID NOT INCLUDE SUBSURFACE ROCK SINCE THE BURIED ROCK WAS NOT DISCOVERED UNTIL THE GROUND FIRST WAS PLOWED FOR THE 1965 CROP AFTER THE DATE OF THE AGREEMENT.

IN THE MEANTIME APPRAISERS FOR THE DEPARTMENT OF THE ARMY ESTIMATED THAT DAMAGES TO THE RIGHT-OF-WAY STRIP BY REASON OF THE SUBMERGED ROCK AMOUNTED TO $50 AND THE DEPARTMENT OF THE ARMY BY LETTER OF APRIL 28, 1966, OFFERED TO SETTLE WITH YOU FOR THAT AMOUNT. BY LETTER OF MAY 21, 1966, YOU DECLINED SUCH OFFER AND REASSERTED YOUR CLAIM FOR THE AMOUNT OF $400.

SUBSEQUENTLY, THE DEPARTMENT OF THE ARMY BY LETTER OF AUGUST 10, 1966, FORWARDED THE CLAIM TO OUR CLAIMS DIVISION FOR CERTIFICATION OF THE AMOUNT DETERMINED TO BE PAYABLE TO YOU. INASMUCH AS APPRAISERS FOR THE DEPARTMENT OF THE ARMY HAD ESTIMATED THAT YOUR DAMAGES DID NOT EXCEED $50, PAYMENT WAS AUTHORIZED IN THAT AMOUNT. IN YOUR LETTER RETURNING THE CHECK YOU STATE THAT THE AMOUNT OFFERED IS NOT SATISFACTORY IN THAT YOU HAD SPENT MUCH MORE THAN THE $50 TRYING TO RESTORE THE LAND TO TILLABLE CONDITION.

THE AMOUNT OF ACTUAL DAMAGES SUFFERED BY YOU BY REASON OF THE SUBMERGED ROCK CONSTITUTES A QUESTION OF FACT. AS IN THIS INSTANCE, WHERE THERE IS A CONFLICT BETWEEN THE STATEMENT OF A CLAIMANT AND THE REPORT OF THE ADMINISTRATIVE OFFICE, AND DOUBT AS TO THE ACTUAL FACTS IN ISSUE, IT HAS BEEN DECLARED BY THE COURT OF CLAIMS TO BE THE DUTY OF THE ACCOUNTING OFFICERS TO REJECT SUCH CLAIMS AND LEAVE THE CLAIMANTS TO THEIR REMEDIES IN THE COURTS. SEE LONGWILL V. UNITED STATES, 17 CT. CL. 288, 291, AND CHARLES V. UNITED STATES, 19 CT. CL. 316, 319. CONSEQUENTLY IN THE ABSENCE OF CLEAR AND CONVINCING EVIDENCE THAT THE DAMAGES AMOUNTED TO MORE THAN $50, THE AMOUNT REPORTED BY EXPERT APPRAISERS OF THE DEPARTMENT OF THE ARMY, WE WOULD NOT BE JUSTIFIED IN AUTHORIZING PAYMENT OF ANY SUM IN EXCESS OF SUCH AMOUNT.

WE ARE RETURNING THE CHECK TO YOU BECAUSE YOU MAY WISH TO RECONSIDER THE QUESTION WHETHER THE CHECK NOW SHOULD BE ACCEPTED IN FULL AND FINAL PAYMENT OF YOUR CLAIM OR TO PROSECUTE YOUR CLAIM IN THE COURTS.