B-165464, DEC. 6, 1968

B-165464: Dec 6, 1968

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IN THE ABSENCE OF SUCH POWER OF ATTORNEY AND IN ORDER TO AVOID FURTHER DELAY THE RESPONSE FOR REQUEST OF REVIEW IS BEING ADDRESSED TO YOU. ON THE BASIS OF THE INFORMATION DEVELOPED AS A RESULT OF THAT INVESTIGATION $75 OF THE AMOUNT CLAIMED FOR DAMAGE TO THE CANE WAS NOT ALLOWED AND NONE OF THE AMOUNT OF $480 CLAIMED FOR LOSS OF GRAZING WAS ALLOWED. THE AMOUNT OF $75 DISALLOWED REPRESENTS THE COST WHICH WOULD HAVE BEEN INCURRED FOR CUTTING AND BALING 300 BALES OF CANE AT $0.25 PER BALE. SINCE THIS COST WAS NOT INCURRED. THE FORT WORTH DISTRICT OF THE CORPS OF ENGINEERS RECOMMENDED DISALLOWANCE OF THE AMOUNT OF $480 CLAIMED FOR LOSS OF GRAZING BECAUSE THIS LOSS COULD HAVE BEEN AVOIDED BY REASONABLE ACTIONS OF THE CLAIMANT.

B-165464, DEC. 6, 1968

TO MR. CULLEN WILLIAMS:

THE OFFICE OF THE CHIEF OF ENGINEERS, DEPARTMENT OF THE ARMY, HAS FORWARDED TO THIS OFFICE A LETTER DATED AUGUST 30, 1968, FROM MR. RICHARD L. MEWHINNEY, ATTORNEY AT LAW, FIRST NATIONAL BUILDING, HOLLAND, TEXAS, 76534, WHICH HE ASKED BE CONSIDERED AS YOUR APPEAL FROM THE DECISION NOT TO GRANT YOUR FULL CLAIM FOR DAMAGES INCURRED AS A RESULT OF CORE DRILLING OPERATIONS IN CONNECTION WITH THE LANEPORTRESERVOIR, TEXAS. THE CHECK IN THE AMOUNT OF $353 ISSUED IN PAYMENT OF THE AMOUNT ALLOWED HAS BEEN CANCELLED BY THE CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY, BECAUSE YOU REFUSED TO ACCEPT THAT AMOUNT IN FULL AND FINAL SETTLEMENT OF THE CLAIM.

BEFORE AN ATTORNEY MAY BE RECOGNIZED AS REPRESENTING A CLAIMANT BEFORE THE GENERAL ACCOUNTING OFFICE, HE MUST FILE A POWER OF ATTORNEY DULY EXECUTED BY THE CLAIMANT. IN THE ABSENCE OF SUCH POWER OF ATTORNEY AND IN ORDER TO AVOID FURTHER DELAY THE RESPONSE FOR REQUEST OF REVIEW IS BEING ADDRESSED TO YOU.

THE SETTLEMENT OF APRIL 19, 1968, TO NINA COVINGTON, ADMINISTRATRIX, ESTATE MRS. O. C. (JENNIE M.) POPE AND CULLEN WILLIAMS, AUTHORIZED PAYMENT OF $353 IN FULL AND FINAL SETTLEMENT OF ALL CLAIMS FOR DAMAGES CAUSED BY CORE DRILLING OPERATIONS, LANEPORT RESERVOIR, TEXAS. IT ALLOWED $225 FOR 5.9 ACRES CANE (300 BALES) DESTROYED, $30 FOR REPLOWING LAND NORTH OF THE HOUSE, $70 FOR 7 HOLES DUG, $15 FOR DAMAGE TO THE FENCE AND $13 FOR REPAIR TO A TRACTOR TIRE.

CLAIM HAD BEEN SUBMITTED IN THE AMOUNT OF $880 ON STANDARD FORM 95, DATED OCTOBER 31, 1967. THAT CLAIM DID NOT INCLUDE THE ALLOWED AMOUNTS FOR FENCE DAMAGE AND TRACTOR TIRE REPAIR BUT INCLUDED A CLAIM OF $300 FOR THE 5.9 ACRES OF CANE DESTROYED, $30 FOR PREPARATION OF LAND NORTH OF THE HOUSE, $70 FOR SEVEN HOLES DUG, AND $480 FOR LOSS OF GRAZING ON 42 ACRES OF LAND FROM NOVEMBER 1, 1966, TO FEBRUARY 28, 1967 (120 DAYS) DUE TO HOLES AT $4 PER DAY.

THE COMMUNICATION OF OCTOBER 30, 1966, SIGNED BY YOU AND NINA COVINGTON ON A LETTER OF OCTOBER 26, 1966, TO MISS NINA COVINGTON, ROUTE 1, ROUND ROCK, TEXAS, 78664, FROM THE FORT WORTH DISTRICT OFFICE, CORPS OF ENGINEERS, AS WELL AS YOUR CLAIM OF OCTOBER 31, 1967, FURNISHED A BASIS FOR INVESTIGATING THE CLAIM. ON THE BASIS OF THE INFORMATION DEVELOPED AS A RESULT OF THAT INVESTIGATION $75 OF THE AMOUNT CLAIMED FOR DAMAGE TO THE CANE WAS NOT ALLOWED AND NONE OF THE AMOUNT OF $480 CLAIMED FOR LOSS OF GRAZING WAS ALLOWED.

THE AMOUNT OF $75 DISALLOWED REPRESENTS THE COST WHICH WOULD HAVE BEEN INCURRED FOR CUTTING AND BALING 300 BALES OF CANE AT $0.25 PER BALE. SINCE THIS COST WAS NOT INCURRED, IT CLEARLY CANNOT BE REIMBURSED.

THE FORT WORTH DISTRICT OF THE CORPS OF ENGINEERS RECOMMENDED DISALLOWANCE OF THE AMOUNT OF $480 CLAIMED FOR LOSS OF GRAZING BECAUSE THIS LOSS COULD HAVE BEEN AVOIDED BY REASONABLE ACTIONS OF THE CLAIMANT. WITH REFERENCE TO THIS ITEM IT NOTED THAT 4 HOLES WERE DRILLED IN A 42- ACRE TRACT. EACH HOLE WAS DRILLED CLOSE TO A FENCE LINE AND WAS ONLY 8 INCHES IN DIAMETER. IT STATED THAT "WITH VERY LITTLE TROUBLE AND VERY NOMINAL EXPENSE EACH OF THE FOUR 8 INCH HOLES COULD HAVE BEEN COVERED, AND THE POSSIBILITY OF INJURY TO CLAIMANT'S CATTLE WOULD HAVE BEEN PREVENTED. WITH A LITTLE MORE EFFORT STAKES COULD HAVE BEEN DRIVEN INTO THE HOLES. OTHER SIMILAR REMEDIES COULD HAVE BEEN TAKEN.' IT ALSO REPORTED THAT DURING THE WINTER MONTHS OF NOVEMBER, DECEMBER, JANUARY AND FEBRUARY, WHEN GRASSES HAVE BEEN SUBJECTED TO FROST AND FREEZING WEATHER THEY HAVE LITTLE FOOD VALUE.

IT IS SETTLED THAT NO RECOVERY MAY BE HAD FOR LOSS WHICH THE PERSON INJURED MIGHT HAVE PREVENTED BY REASONABLE EFFORT AND EXPENDITURES. REAVIS V TAYLOR, 162 S.W. (2D) 1030 (1942).

OUR EXAMINATION AND REVIEW OF THE FILE DISCLOSES THAT THIS CASE HAS BEEN THOROUGHLY INVESTIGATED AND CONSIDERED BY THE ARMY CORPS OF ENGINEERS. DO NOT HAVE THE TECHNICAL PERSONNEL TO CONDUCT SIMILAR INVESTIGATIONS AND NECESSARILY MUST RELY ON THE FINDINGS OF FACT AS DETERMINED BY THE ARMY CORPS OF ENGINEERS. ACCORDINGLY, UPON REVIEW, THE ACTION OF THE CLAIMS DIVISION, GENERAL ACCOUNTING OFFICE, IN ALLOWING YOUR CLAIM IN THE AMOUNT OF $353, AS RECOMMENDED BY THE CHIEF OF ENGINEERS, MUST BE AND HEREBY IS SUSTAINED.

IF A CLAIMANT IS NOT SATISFIED WITH THE AMOUNT WHICH THIS OFFICE DETERMINES TO BE DUE HIM FROM THE GOVERNMENT OF THE UNITED STATES, HE HAS RECOURSE TO THE PROPER COURTS WHERE DISPUTED QUESTIONS OF FACT CAN BE DETERMINED.

IN THE EVENT THAT YOU DECIDE YOU DO NOT WANT TO PURSUE YOUR REMEDY IN THE COURTS AND DECIDE TO ACCEPT THE AMOUNT OF $353 IN FULL AND FINAL SETTLEMENT OF THE CLAIM YOU SHOULD NOTIFY THIS OFFICE SO THAT APPROPRIATE ACTION MAY BE TAKEN TO ISSUE A CHECK IN THAT AMOUNT.