B-162853, NOV. 30, 1967

B-162853: Nov 30, 1967

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WHERE NEITHER AMOUNT OF DAMAGE AS RESULT OF WELL GOING DRY NOR LEGAL LIABILITY IS SUFFICIENTLY DEFINITE TO WARRANT SETTLEMENT BY GAO. REJECTION OF CLAIM IS REQUIRED LEAVING INDIVIDUAL FREE TO PURSUE REMEDY IN THE COURTS. BERTHA REINBOLD: WE HAVE RECEIVED A LETTER DATED OCTOBER 19. IT IS NOTED THAT THE SECOND PARAGRAPH OF THE SETTLEMENT CERTIFICATE STATES THAT AFTER THE DISMISSAL OF THE CIVIL ACTION UNDER THE FEDERAL TORT CLAIMS ACT. ANOTHER ADMINISTRATIVE CLAIM IN TORT WAS SUBMITTED TO THE ARMY (DISTRICT ENGINEERS) ON APRIL 22. THAT CLAIM WAS DISALLOWED BY THE JUDGE ADVOCATE GENERAL BECAUSE IT HAD NOT BEEN FILED WITHIN TWO YEARS AFTER THE WELL WENT DRY IN FEBRUARY 1962 AND BECAUSE IT EXCEEDED THE STATUTORY LIMITATION OF $2.

B-162853, NOV. 30, 1967

PROPERTY - PRIVATE - TAKING FOR PUBLIC USE DECISION CONCERNING CLAIM FOR COMPENSATION FOR TAKING OF WATER SUPPLY AS RESULT OF OPERATION OF TWO GOVERNMENT WELLS. WHERE NEITHER AMOUNT OF DAMAGE AS RESULT OF WELL GOING DRY NOR LEGAL LIABILITY IS SUFFICIENTLY DEFINITE TO WARRANT SETTLEMENT BY GAO, REJECTION OF CLAIM IS REQUIRED LEAVING INDIVIDUAL FREE TO PURSUE REMEDY IN THE COURTS.

TO NORMAN REINBOLD, ANITA REINBOLD, AND BERTHA REINBOLD:

WE HAVE RECEIVED A LETTER DATED OCTOBER 19, 1967, FROM UNDERWOOD, CAMPBELL AND ZELLMER, ATTORNEYS AT LAW, 529 MORGAN STREET, DAVENPORT, WASHINGTON, 99122, WHICH IN EFFECT, REQUESTS A REVIEW OF GENERAL ACCOUNTING OFFICE SETTLEMENT CERTIFICATE OF JULY 25, 1967. THAT SETTLEMENT CERTIFICATE DISALLOWED YOUR CLAIM FOR COMPENSATION ALLEGED TO BE DUE BECAUSE OF A "TAKING" OF YOUR WATER SUPPLY AS A RESULT OF OPERATION OF TWO GOVERNMENT WELLS WHICH LOWERED THE WATER TABLE OF YUOUR UNDERGROUND SUPPLY TO SUCH AN EXTENT THAT YOUR WELL WENT DRY.

IN THE LETTER OF OCTOBER 19, 1957, IT IS NOTED THAT THE SECOND PARAGRAPH OF THE SETTLEMENT CERTIFICATE STATES THAT AFTER THE DISMISSAL OF THE CIVIL ACTION UNDER THE FEDERAL TORT CLAIMS ACT, ANOTHER ADMINISTRATIVE CLAIM IN TORT WAS SUBMITTED TO THE ARMY (DISTRICT ENGINEERS) ON APRIL 22, 1964. THAT CLAIM WAS DISALLOWED BY THE JUDGE ADVOCATE GENERAL BECAUSE IT HAD NOT BEEN FILED WITHIN TWO YEARS AFTER THE WELL WENT DRY IN FEBRUARY 1962 AND BECAUSE IT EXCEEDED THE STATUTORY LIMITATION OF $2,500 THEN IN EFFECT FOR ADMINISTRATIVE SETTLEMENT UNDER THE FEDERAL TORT CLAIMS ACT. THE LETTER POINTED OUT THAT THE STATEMENT WAS NOT CORRECT IN THAT THE CLAIM SUBMITTED ON APRIL 22, 1964, WAS NOT IN TORT BUT WAS FOR A "TAKING" IN CONTRAVENTION OF THE FIFTH AMENDMENT. SINCE THE STATEMENT WAS INCORRECT IT WAS FELT THAT THIS MIGHT CAUSE THE MATTER TO BE RECONSIDERED WITH POSSIBLY A DIFFERENT DECISION.

THAT STATEMENT HAD NO EFFECT UPON THE DISPOSITION OF YOUR CLAIM WHICH WAS SENT TO THE GENERAL ACCOUNTING OFFICE ON FEBRUARY 21, 1966, PURSUANT TO THE PROVISIONS OF 31 U.S.C. 71. AS STATED IN THE CONCLUDING PARAGRAPH OF THE SETTLEMENT CERTIFICATE OF JULY 25, 1967, WHICH DISALLOWED THAT CLAIM,"IN THE EVENT THE DAMAGE TO YOUR WELL COULD BE CONSIDERED AS A - TAKING- OF PROPERTY, NEITHER THE AMOUNT OF DAMAGE CLAIMED NOR THE LEGAL LIABILITY THEREFOR IS SUFFICIENTLY CERTAIN TO WARRANT SETTLEMENT BY OUR OFFICE.' THE CASES CITED IN THAT PARAGRAPH LONGWILL V. UNITED STATES, 17 CT. CL. 288, 291, AND CHARLES V. UNITED STATES,119 CT. CL. 316, 319 ARE AUTHORITY FOR THE PROPOSITION THAT REJECTION OF A CLAIM BY THE ACCOUNTING OFFICERS LEAVES THE PARTY FREE TO PURSUE HIS REMEDY AT LAW.

THE BRIEF SUBMITTED IN SUPPORT OF THE CLAIM WAS CONSIDERED BEFORE THE SETTLEMENT CERTIFICATE OF JULY 25, 1967, WAS ISSUED. THAT BRIEF, TOGETHER WITH THE ENTIRE CLAIM HAS NOW BEEN THOROUGHLY REVIEWED. IT IS CONCLUDED THAT THE SETTLEMENT CERTIFICATE OF JULY 25, 1967, WHICH DISALLOWED YOUR CLAIM MUST BE AND HEREBY IS SUSTAINED.