B-182118, OCT 2, 1974

B-182118, OCT 2, 1974

PROVISION OF EASEMENT GRANTED BY ARMY REQUIRING RELOCATION OF RIGHT OF- WAY UPON NOTICE THAT LAND WAS NEEDED BY THE UNITED STATES REQUIRES FORMAL NOTICE WHEN LAND IS NEEDED FOR SIGNAL CABLES, SINCE ANOTHER PROVISION OF EASEMENT STATED THAT ARMY WOULD NOT UNREASONABLY INTERFERE WITH RIGHT-OF- WAY IN CONSTRUCTION OR USE OF TELEPHONE AND TELEGRAPH LINES AND SIMILAR FACILITIES.

PACIFIC GAS AND ELECTRIC COMPANY:

BY LETTER DATED AUGUST 22, 1974, THE ACTING CHIEF, LOGISTICS AND CONTRACT LAW TEAM, PROCUREMENT LAW DIVISION, DEPARTMENT OF THE ARMY, ON BEHALF OF THE SECRETARY OF THE ARMY, FORWARDED THE FILE AND REQUESTED OUR DECISION REGARDING A CLAIM FOR $899.13 BY THE PACIFIC GAS AND ELECTRIC COMPANY (PC&E), SALINAS, CALIFORNIA, FOR THE ELEVATION OF AN ELECTRIC POWER LINE ON EUNTER LIGGETT MILITARY RESERVATION. ALTHOUGH REQUESTS FOR DECISIONS IN A MATTER LIKE THIS SHOULD BE SUBMITTED BY THE HEAD OF A DEPARTMENT OR BY THE AUTORIZED CERTIFYING OR DISBURSING OFFICER CONCERNED WITH THE PAYMENT, THE MATTER WILL BE TREATED AS A REQUEST FOR A DECISION BY THE SECRETARY OF THE ARMY. 43 COMP. GEN. 227 (1963); 41 COMP. GEN. 767 (1962).

THE RECORD INDICATES THAT PG&E MAINTAINS A 12,000-VOLT POWER LINE ON HUNTER LIGGETT MILITARY RESERVATION UNDER EASEMENT NO. SFRES)-100, EXECUTED ON MAY 11, 1950. THE CASEMENT PROVIDES, IN PERTINENT PART:

"7. THAT THE UNITED STATES RESERVES TO ITSELF THE RIGHT TO CONSTRUCT, USE, AND MAINTAIN ACROSS, OVER, AND/OR UNDER THE RIGHT-OF WAY HEREBY GRANTED, ELECTRIC TRANSMISSION, TELEPHONE, TELEGRAPH, WATER, GAS, GASOLINE, OIL, AND SEWER LINES, AND OTHER FACILITIES, IN SUCH MANNER AS NOT TO CREATE ANY UNREASONABLE INTERFERENCE WITH THE USE OF THE RIGHT-OF- WAY HEREIN GRANTED.

"11. THAT, IN THE EVENT ALL OR ANY PORTION OF SAID LAND OCCUPIED BY SAID LINE SHALL BE NEEDED BY THE UNITED STATES, OR IN THE EVENT THE EXISTENCE OF SAID LINE SHALL BE CONSIDERED DETRIMENTAL TO GOVERNMENTAL ACTIVITIES, THE GRANTEE SHALL, FROM TIME TO TIME, UPON NOTICE SO TO DO, AND AS OFTEN AS SO NOTIFIED, REMOVE SAID LINE AND RELATED FACILITIES TO SUCH OTHER LOCATION OR LOCATIONS ON SAID LAND AS MAY BE DESIGNATED BY SAID OFFICER, OR THE GRANTEE MAY AT ITS OPTION RECONSTRUCT SAID LINE AND FACILITIES UNDERGROUND ON SAID LAND WITHOUT EXPENSE TO THE UNITED STATES SUBJECT TO THE SUPERVISION OF SAID OFFICER, AND IN THE EVENT SAID PROPERTY SHALL NOT BE REMOVED OR RELOCATED WITHIN NINETY (90) DAYS AFTER ANY AFORESAID NOTICE, THE UNITED STATES MAY CAUSE THE SAME TO BE DONE AT THE EXPENSE OF THE GRANTEE; EXCEPT THAT THE UNITED STATES SHALL PAY THE COST OF RELOCATING ANY SERVICE TAPE SERVING ITSELF."

DURING THE FALL OF 1966 THE ARMY INSTALLED TWO SIGNAL CABLES ON POLES WHICH RUN BENEATH THE PG&E POWER LINE AT A ROAD INTERSECTION ON THE RESERVATION. IN ORDER TO INSURE AMPLE CLEARANCE FOR LARGE VEHICLES, THE SIGNAL CABLES WERE RAISED TO WITHIN 14-15 INCHES OF THE PG&E POWER LINE. THIS CREATED AN INDUCTION FIELD WHICH AFFECTED COMMUNICATIONS ON THE SIGNAL LINES, WAS DANGEROUS TO PERSONNEL AND EQUIPMENT ND ALSO WAS VIOLATIVE OF STATE AND FEDERAL REGULATIONS.

AFTER NOTIFICATION OF THE PROXIMITY OF THE SIGNAL CABLE, PG&E PROCEEDED TO RAISE THEIR POWER LINE ON JANUARY 9, 1969, AND ON APRIL 9, 1971, FILED A CLAIM WITH THE ARMY FOR THE COST OF THE WORK, $899.13.

THE CLAIM WAS INITIALLY DENIED ON GROUNDS THAT ERECTION OF THE SIGNAL CABLE IN PROXIMITY TO THE PG&E POWER LINE WAS IN EFFECT NOTICE THAT PG&E WAS REQUIRED TO RELOCATE THE POWER LINE PURSUANT TO PARAGRAPH 11 OF THE EASEMENT PROVISIONS. THIS POSITION WAS REJECTED IN A MEMORANDUM OF OPINION DATED APRIL 10, 1972, BY THE CLAIMS OFFICER WHO INVESTIGATED THE CLAIM AND RECOMMENDED PAYMENT BASED ON THE GOVERNMENT'S VIOLATION OF ITS PROMISE IN PARAGRAPH 7 NOT TO UNREASONABLY INTERFERE WITH THE RIGHT-OF-WAY WITH ITS OWN TRANSMISSION LINES.

THE CLAIMS OFFICER RESOLVED THE APPARENT INCONSISTENCY BETWEEN PARAGRAPH 7 AND PARAGRAPH 11 (THE GOVERNMENT PROMISED NOT TO UNREASONABLY INTERFERE WITH ITS OWN FACILITIES WHILE RESERVING THE RIGHT TO REQUIRE RELOCATION OF THE RIGHT-OF-WAY ALTOGETHER), BY HOLDING THAT PARAGRAPH 11 PERTAINED ONLY TO NOTICE REQUIRING RELOCATION OF THE POWER LINE, NOT NOTICE THAT FACILITIES MUST BE ALTERED IN PLACE. IN SUPPORT OF HIS RESOLUTION THE CLAIMS OFFICER CITED THE FAMILIAR RULE FOR INTERPRETATION OF CONTRACTS THAT DOUBTS ARISING FROM INCONSISTENT OR AMBIGUOUS PROVISIONS WILL BE RESOLVED AGAINST THE DRAFTER, IN THIS CASE THE UNITED STATES. SEE C.J. MONTAG AND SONS, INC. V. UNITED STATES, 172 CT. CL. 501, 510; 348 F.2D 954 (1965); AND AUTHORITIES CITED THEREIN.

IT IS EVIDENT THAT THE GOVERNMENT'S UNRESTRICTED PROMISE IN PARAGRAPH 7 NOT TO CREATE AN UNREASONABLE INTERFERENCE WITH THE RIGHT-OF-WAY BY CONSTRUCTION OR USE OF "ELECTRIC TRANSMISSION, TELEPHONE, TELEGRAPH, WATER, GAS, GASOLINE, OIL, AND SEWER LINES, AND OTHER FACILITIES" RAISES THE QUESTION OF WHETHER SUCH FACILITIES WERE INTENDED TO BE NEEDS OR GOVERNMENTAL ACTIVITIES WHICH CAN REQUIRE RELOCATION OF THE RIGHT-OF-WAY PURSUANT TO PARAGRAPH 11. HOWEVER, EVEN IF ERECTION OF THE TWO SIGNAL CABLES IS SUFFICIENT FOR THE ARMY TO REQUIRE REMOVAL OR ALTERATION OF PG&E'S POWER LINE, THE ARMY VIOLATED THE EASEMENT AGREEMENT BY FAILING TO GIVE PG&E FORMAL NOTICE OF ITS PROPOSED ACTIONS.

THE LEGAL EFFECTS OF THE TERMS OF AN INSTRUMENT ARE TO BE DETERMINED AS A WHOLE. 3 CORBIN ON CONTRACTS (REV. ED.) SEC. 549. "*** A CONTRACT CANNOT BE DISJOINTED OR PARTICULAR PARTS SEPARATED FROM THE BALANCE, AS IT IS NECESSARY TO CONSIDER ALL OF THE PROVISIONS OF A CONTRACT IN ORDER TO DETERMINE THE MEANING OF ANY PARTICULAR PART AS WELL AS THE MEANING OF THE WHOLE DOCUMENT." FLORIDA CANADA CORP. V. UNION CARBIDE & CARBON CORP., 280 F.2D 193, 195-96 (6TH CIR. 1960), CERT. DENIED, GENERAL DEVELOPMENT CORP. V. UNION CARBIDE & CARBON CORP., 364 U.S. 902 (1960).

PARAGRAPH 7 WOULD BE MEANINGLESS IF INTERFERENCE WITH PG&E'S RIGHT-OF WAY BY UNITED STATES TRANSMISSION LINES AMOUNTED TO NOTICE REQUIRED BY PARAGRAPH 11 THAT THE LAND WAS NEEDED BY THE UNITED STATES. IT IS CLEAR WHEN THE TWO PARAGRAPHS ARE READ TOGETHER THAT IF ERECTION OF THE FACILITIES ENUMERATED IN PARAGRAPH 7 WERE INTENDED TO BE SUFFICIENT TO REQUIRE RELOCATION OF THE RIGHT-OF-WAY, THEN IT WAS INTENDED AND UNDERSTOOD THAT FORMAL NOTICE WOULD BE GIVEN PG&E WHEN THE RIGHT-OF WAY, WAS NEEDED FOR SUCH FACILITIES. AS STATED IN BASLER V. WARREN, 159 F.2D 41, 43 (10TH CIR. 1947):

"IT IS A UNIVERSAL CANON OF CONSTRUCTION THAT EVERY WORD AND PHRASE OF A CONTRACT SHOULD BE GIVEN A MEANING AND SIGNIFICATION ACCORDING TO ITS IMPORTANCE IN THE CONTEXT OF THE CONTRACT. COURTS ARE NOT WARRANTED IN READING OUT OF A CONTRACT WORDS OR PHRASES PLACED THERE BY THE CONTRACTING PARTIES UNLESS THEY CANNOT BE RATIONALLY FITTED INTO THE SCHEME OF THE AGREEMENT BETWEEN THE PARTIES."

AND IN HOL-CAR MANUFACTURING CORPORATION V. UNITED STATES, 169 CT. CL. 384, 395; 351 F.2D 972, 979 (1965):

"*** AN INTERPRETATION WHICH GIVES A REASONABLE MEANING TO ALL PARTS OF AN INSTRUMENT WILL BE PREFERRED TO ONE WHICH LEAVES A PORTION OF IT USELESS, INEXPLICABLE, INOPERATIVE, VOID, INSIGNIFICANT, MEANINGLESS OR SUPERFLUOUS; NOR SHOULD ANY PROVISION BE CONSTRUED AS BEING IN CONFLICT WITH ANOTHER UNLESS NO OTHER REASONABLE INTERPRETATION IS POSSIBLE ***."

PARAGRAPH 11 WAS NOT INVOKED IN THIS CASE AS NO FORMAL NOTICE WAS PRESENTED PG&E THAT THE LAND WAS NEEDED BY THE UNITED STATES. CF. BASLER V. WARREN, SUPRA.

REVIEWERS OF PG&E'S CLAIM SUBSEQUENT TO THAT OF THE INVESTIGATING CLAIMS OFFICER RECOMMENDED DENIAL UNDER OPINIONS THAT THE CLAIM SOUNDED IN TORT AND WAS NOT FILED WITHIN THE 2-YEAR PERIOD REQUIRED FOR SUCH A CLAIM, AND THAT BECAUSE THE GOVERNMENT HAD A LEGITIMATE PURPOSE FOR THE INTERFERENCE IT WAS NOT "UNREASONABLE" WITHIN THE MEANING OF THE TERM IN PARAGRAPH 7.

IRRESPECTIVE OF WHETHER OR NOT PG&E MAY HAVE HAD REMEDY UNDER THE MILITARY CLAIMS ACT, 10 U.S.C. 2733 (1970), OR THE FEDERAL TORT CLAIMS ACT, 28 U.S.C. 2671-2680 (1970), WHICH WOULD HAVE BEEN BARRED FOR UNTIMELY FILING, THE CLAIM WAS REFERRED TO THIS OFFICE FOR SETTLEMENT UNDER THE EASEMENT AGREEMENT WITHIN THE APPLICABLE LIMITATION OF 10 YEARS. U.S.C. 71A(1) (1970). THE TERM "UNREASONABLE" IN PARAGRAPH 7 MODIFIES "INTERFERENCE" AND THEREFORE GOES O THE NATURE OF THE INTERFERENCE RATHER THAN MOTIVE. INTERFERENCE TO THE EXTENT OF ENDANGERING PERSONS AND PROPERTY AND PLACING FG&E IN VIOLATION OF STATE AND FEDERAL REGULATIONS IS MANIFESTLY "UNREASONABLE."

THE $899.13 REQUESTED BY PG&E WAS SUBSTANTIATED TO THE SATISFACTION OF THE INVESTIGATING CLAIMS OFFICER AND WAS NOT QUESTIONED ON REVIEW.

ACCORDINGLY, PAYMENT IN THE AMOUNT OF $899.13 IS AUTHORIZED, IF OTHERWISE CORRECT.