B-20719, NOVEMBER 10, 1941, 21 COMP. GEN. 440

B-20719: Nov 10, 1941

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THAT DAMAGES RESULTED TO THE OWNER OF MILCH GOATS WHICH WERE FRIGHTENED WHEN NAVAL AIRCRAFT OPERATED IN THE VICINITY OF THE GOAT DAIRY. 1941: I HAVE YOUR LETTER OF SEPTEMBER 19. THE DAMAGES FOR WHICH CLAIM IS MADE INCLUDE LOSS OF MILK FROM CLAIMANTS' MILCH GOATS. THESE CLAIMANTS STATE THAT THEIR MILCH GOATS ARE TIMID AND TEMPERAMENTAL BY NATURE. THAT MANY DOE GOATS HEAVY WITH KID WERE FRIGHTENED BY NAVAL AIRCRAFT FLYING OVER LAYAN'S GOAT DAIRY AND FELL PARALYZED FROM FRIGHT. THE CLAIMANTS LIKEWISE ASSERT THAT THEY WERE DEPRIVED OF THE USE OF FORTY- EIGHT ACRES OF IMPROVED PASTURE LAND ON WHICH THEY PASTURED THEIR GOATS. THE CLAIMANTS HAVE BEEN FORCED TO DISCONTINUE THEIR BUSINESS AND TO DISPOSE OF THEIR ENTIRE HERD OF GOATS.

B-20719, NOVEMBER 10, 1941, 21 COMP. GEN. 440

PRIVATE PROPERTY - DAMAGES BY OPERATIONS OF NAVAL AIRCRAFT IF THE SECRETARY OF THE NAVY SHOULD DETERMINE, PURSUANT TO AN APPROPRIATION PROVISION AUTHORIZING HIM TO CONSIDER, ETC., AND PAY FROM THE APPROPRIATION CLAIMS FOR DAMAGES TO PRIVATE PROPERTY GROWING OUT OF THE OPERATIONS OF NAVAL AIRCRAFT, THAT DAMAGES RESULTED TO THE OWNER OF MILCH GOATS WHICH WERE FRIGHTENED WHEN NAVAL AIRCRAFT OPERATED IN THE VICINITY OF THE GOAT DAIRY, PAYMENT MAY BE MADE FROM THE APPLICABLE APPROPRIATION," AVIATION, NAVY," OF SUCH AMOUNT AS MAY BE FOUND DUE. COMP. GEN. 234; 4 ID. 1074; AND 13 ID. 349, DISTINGUISHED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, NOVEMBER 10, 1941:

I HAVE YOUR LETTER OF SEPTEMBER 19, 1941 (FILE L11-15/QQ/410130/K) AS FOLLOWS:

THE NAVY DEPARTMENT HAS UNDER CONSIDERATION A CLAIM, DATED AUGUST 5, 1941, SUBMITTED BY H. L. CROSBY AND ZELDA CROSBY, DOING BUSINESS AS LAYAN'S GOAT DAIRY, ROUTE 2, BOX 341, PENSACOLA, FLORIDA, IN THE AMOUNT OF $456.00, FOR DAMAGES SUSTAINED BY THEM AS OPERATORS OF SAID DAIRY, CAUSED BY OPERATION BY THE NAVY DEPARTMENT OF SAUFLEY NAVAL TRAINING FIELD, U.S. NAVAL AIR STATION, PENSACOLA, FLORIDA. THE DAMAGES FOR WHICH CLAIM IS MADE INCLUDE LOSS OF MILK FROM CLAIMANTS' MILCH GOATS, LOSS OF KIDS AND DOE GOATS AND LOSS OF USE OF FORTY-EIGHT ACRES OF IMPROVED PASTURE LAND, ALL OCCURRING DURING THE PERIOD BETWEEN SEPTEMBER 1, 1940, AND JUNE 15, 1941.

IT APPEARS FROM THE INVESTIGATION MADE OF THIS CLAIM THAT THESE TWO CLAIMANTS COMMENCED THE OPERATION OF THEIR GOAT DAIRY IN THE SUMMER OF 1936, THAT THEY OPERATED THIS DAIRY SUCCESSFULLY UNTIL SEPTEMBER 1, 1940, AND THAT BETWEEN SEPTEMBER 1, 1940, AND JUNE 15, 1941, THEY SUSTAINED LOSSES AFTER THE OPENING OF SAUFLEY NAVAL TRAINING FIELD AT U.S. NAVAL AIR STATION, PENSACOLA, FLORIDA, IN THE AMOUNT OF $456.00.

THESE CLAIMANTS STATE THAT THEIR MILCH GOATS ARE TIMID AND TEMPERAMENTAL BY NATURE, THAT THE MILK SUPPLY GREATLY DECREASED, THAT MANY DOE GOATS HEAVY WITH KID WERE FRIGHTENED BY NAVAL AIRCRAFT FLYING OVER LAYAN'S GOAT DAIRY AND FELL PARALYZED FROM FRIGHT, NEVER TO WALK AGAIN OR DELIVER THEIR KIDS. DURING THE PERIOD IN QUESTION, SEPTEMBER 1, 1940, TO JUNE 15, 1941, THE CLAIMANTS LIKEWISE ASSERT THAT THEY WERE DEPRIVED OF THE USE OF FORTY- EIGHT ACRES OF IMPROVED PASTURE LAND ON WHICH THEY PASTURED THEIR GOATS, AND THAT SUCH DEPRIVATION RESULTED FROM THE OPERATION OF NAVAL AIRPLANES OVER SAID FORTY-EIGHT ACRES OF IMPROVED PASTURE LAND. THE CLAIMANTS HAVE BEEN FORCED TO DISCONTINUE THEIR BUSINESS AND TO DISPOSE OF THEIR ENTIRE HERD OF GOATS.

THE FLIGHTS DURING WHICH THIS DAMAGE OCCURRED WERE OFFICIAL FLIGHTS, DULY AUTHORIZED. NO COPIES OF FLIGHT ORDERS ARE AVAILABLE.

THE CURRENT NAVAL APPROPRIATION ACT, APPROVED MAY 6, 1941 ( PUBLIC LAW NO. 48, 77TH CONGRESS), PROVIDES UNDER THE APPROPRIATION, " AVIATION, NAVY," AS FOLLOWS:

"* * * THAT THE SECRETARY OF THE NAVY IS HEREBY AUTHORIZED TO CONSIDER, ASCERTAIN, ADJUST, DETERMINE, AND PAY OUT OF THIS APPROPRIATION THE AMOUNTS DUE ON CLAIMS FOR DAMAGES WHICH HAVE OCCURRED OR MAY OCCUR TO PRIVATE PROPERTY GROWING OUT OF THE OPERATIONS OF NAVAL AIRCRAFT WHERE SUCH CLAIM DOES NOT EXCEED THE SUM OF $500: * * *"

IN THE COMPTROLLER GENERAL'S DECISION OF OCTOBER 20, 1923 (3 COMP. GEN. 234), IT WAS HELD (SYLLABUS):

"IN THE ABSENCE OF NEGLIGENCE, THE LANDING OF AN AIRPLANE IN AN ADJOINING FIELD OR THE FLYING OF THE AIRPLANE OVER THE FIELD IN WHICH CATTLE ARE LOCATED DOES NOT RENDER THE GOVERNMENT LIABLE FOR DAMAGES TO THE CATTLE OR THE FENCE DUE TO THE FRIGHT AND STAMPEDING OF THE CATTLE.'

IN A LATER DECISION OF JUNE 30, 1925 (4 COMP. GEN. 1074), THE COMPTROLLER GENERAL HELD (SYLLABUS):

"A CLAIM COVERING DAMAGES FOR LOSS OF A HORSE RESULTING FROM OPERATION OF AN ARMY BALLOON, WHEN NOT IN EXCESS OF $250, MAY BE ALLOWED, UNDER THE ACT OF JUNE 7, 1924, 43 STAT. 492, WHERE IT IS SHOWN THAT THE HORSE OF THE CLAIMANT BECAME FRIGHTENED WHILE THE BALLOON WAS PASSING OVER THE CLAIMANT'S FARM, RAN INTO A BARBED-WIRE FENCE, AND WAS SO INJURED THAT IT WAS NECESSARY FOR IT TO BE KILLED.'

IN THE TEXT OF THIS DECISION IT IS STATED:

"THE FACTS IN THIS CASE ARE ESSENTIALLY DIFFERENT FROM THE FACTS INVOLVED IN THE CASE DECIDED IN 3 COMP. GEN. 234.'

IN A STILL LATER DECISION OF MAY 15, 1934 (13 COMP. GEN. 349), IT IS HELD (SYLLABUS):

"THE APPROPRIATIONS FOR THE MAINTENANCE OF LANDING FIELDS UNDER THE DEPARTMENT OF COMMERCE ARE NOT AVAILABLE FOR THE PAYMENT OF CONSEQUENTIAL DAMAGES TO ADJOINING PROPERTY OWNERS ALLEGED TO HAVE RESULTED FROM THE LAWFUL AND PROPER MAINTENANCE BY THE UNITED STATES OF SUCH A LANDING FIELD.

"THE DRIFTING OF SAND AND DUST FROM A LANDING FIELD FOR AIRPLANES TO ADJOINING PROPERTY IS A CONSEQUENTIAL MATTER AND THE UNITED STATES IS NOT LIABLE IN DAMAGES TO SUCH ADJOINING PROPERTY OWNERS, ESPECIALLY IN THE ABSENCE OF SHOWING OF NEGLIGENCE IN THE MAINTENANCE AND OPERATION OF SUCH LANDING FIELD.'

WHILE PAYMENT OF THIS CLAIM WOULD APPEAR TO BE AUTHORIZED IN ACCORDANCE WITH THE DECISION PUBLISHED IN 3 COMP. GEN. 234, SUPRA, THE NAVY DEPARTMENT IS IN DOUBT AS TO WHETHER THE APPROPRIATION," AVIATION, NAVY," FOR THE CURRENT FISCAL YEAR MAY BE CONSIDERED LEGALLY AVAILABLE FOR THIS PURPOSE, IN VIEW OF THE LATER DECISIONS OF YOUR OFFICE ON THIS SUBJECT, AS PUBLISHED IN 4 COMP. GEN. 1074 AND 13 ID. 349.

IN VIEW OF THE FOREGOING, YOUR DECISION IS REQUESTED AS TO WHETHER THE CURRENT APPROPRIATION," AVIATION, NAVY," MAY BE CONSIDERED LEGALLY AVAILABLE FOR PAYMENT OF THIS CLAIM.

THE STATEMENT MADE IN YOUR LETTER TO THE EFFECT THAT "PAYMENT OF THIS CLAIM WOULD APPEAR TO BE AUTHORIZED IN ACCORDANCE WITH THE DECISION PUBLISHED IN 3 COMP. GEN. 234," BUT THAT DOUBT IN THE MATTER EXISTS "IN VIEW OF THE LATER DECISIONS OF YOUR OFFICE ON THIS SUBJECT, AS PUBLISHED IN 4 COMP. GEN. 1074 AND 13 ID. 349," INDICATES SOME CONFUSION OR MISCONCEPTION AS TO THE EFFECT OF THOSE DECISIONS. IT WAS HELD IN 3 COMP. GEN. 234 THAT PUBLIC FUNDS WERE NOT AVAILABLE TO PAY THE DAMAGE CLAIM THERE UNDER CONSIDERATION, WHEREAS IN THE LATER DECISION PUBLISHED IN 4 COMP. GEN. 1074 IT WAS HELD THAT THE CLAIM THERE INVOLVED WAS PROPERLY FOR PAYMENT FROM SUCH FUNDS. THUS, IF PAYMENT WERE TO BE REGARDED AS "AUTHORIZED IN ACCORDANCE WITH" EITHER OF THOSE DECISIONS IT WOULD APPEAR TO BE THE LATER DECISION WHICH WOULD PROVIDE SUCH AUTHORITY AND NOT THE EARLIER ONE AS INDICATED IN YOUR LETTER. HOWEVER, FOR REASONS HEREINAFTER SET FORTH, NEITHER OF THE DECISIONS CITED IN YOUR LETTER IS TO BE REGARDED AS DETERMINATIVE OF THE ACTION TO BE TAKEN IN THE PRESENT CASE.

THE DECISION OF OCTOBER 20, 1923, 3 COMP. GEN. 234, WAS DECIDED ON THE BASIS OF THE PARTICULAR FACTS THERE INVOLVED. IT WAS ALLEGED BY THE CLAIMANT IN THAT CASE THAT HIS CATTLE WERE FRIGHTENED BY THE NOISE OF A LOW-FLYING ARMY AIRPLANE, THAT THEY BROKE THROUGH THE PASTURE FENCE, AND THAT ,THREE MEN WERE ENGAGED APPROXIMATELY FOUR DAYS IN LOCATING AND GETTING THEM BACK INTO THE STURE.' THE CLAIM WAS ORIGINALLY FILED IN THE AMOUNT OF $732, CONSISTING OF $702 AS DAMAGE BY REASON OF SHRINKAGE OF THE CATTLE THROUGH FRIGHT AND LOSS OF FEED, AND $30 FOR THE LABOR IN ROUNDING THEM UP AND REPAIRING THE FENCE. IT WILL BE NOTED THAT THE ENLISTED MEN WHO WERE IN THE ARMY AIRPLANE TESTIFIED "THAT THE FENCE WAS IN A VERY DILAPIDATED CONDITION; THAT THE CATTLE WERE IN THE FAR CORNER OF THE PASTURE WHEN THE AIRPLANE PASSED OVER THEM AT AN ALTITUDE OF APPROXIMATELY 500 FEET * * * AND THAT SUBSEQUENTLY THEY WERE INFORMED THE PERVERSENESS OF THE CATTLE HAD FREQUENTLY LED THEM TO BREAK PASTURE.'

THE BOARD OF OFFICERS ASSIGNED TO INVESTIGATE THE MATTER REPORTED ADVERSELY THEREON AND THE SECRETARY OF WAR APPROVED THEIR FINDINGS, DENYING THE CLAIM. SUBSEQUENTLY, THE CLAIMANT REQUESTED RECONSIDERATION OF THE CLAIM ON THE GROUND OF NEWLY DISCOVERED EVIDENCE -- IN THE FORM OF TWO AFFIDAVITS OF EMPLOYEES OF SAID CLAIMANT TO THE EFFECT THAT THE FENCE WAS IN GOOD ORDER AND THAT THE NOISE OF THE AIRPLANE CAUSED THE CATTLE TO STAMPEDE. THE THEN SECRETARY OF WAR RECONSIDERED THE ACTION OF HIS PREDECESSOR--- WHO, AS ABOVE NOTED, HAD PREVIOUSLY DISAPPROVED THE CLAIM-- - AND RECOMMENDED AN ALLOWANCE OF $244.69. HOWEVER, THIS OFFICE IN THE DECISION REPORTED IN 3 COMP. GEN. 234, HELD THAT THE AFFIDAVITS, WHICH WERE NOT EXECUTED UNTIL AFTER THE FORMER SECRETARY OF WAR HAD APPROVED DENIAL OF THE CLAIM, DID NOT MEET THE TEST OF NEW AND MATERIAL EVIDENCE AND CONCLUDED THAT "THE MATTER MAY BE CLASSED AS AN ACCIDENTAL HAPPENING FOR WHICH THERE IS NO LIABILITY IN DAMAGES.'

IN DECISION OF JUNE 30, 1925, 4 COMP. GEN. 1074, THE DAMAGE CLAIM WAS FOR THE LOSS OF A HORSE WHICH RAN INTO A BARBED WIRE FENCE AND WAS SEVERELY INJURED, AS THE RESULT OF BEING FRIGHTENED BY A LOW-FLYING ARMY BALLOON. THE CLAIM WAS APPROVED BY THE CHIEF OF AIR SERVICE AND THE ASSISTANT SECRETARY OF WAR ON THE BASIS OF FINDINGS FAVORABLE TO THE CLAIMANT AS SUBMITTED BY A BOARD OF OFFICERS ASSIGNED TO INVESTIGATE THE CLAIM; AND THIS OFFICE, IN SAID DECISION, AUTHORIZED PAYMENT OF THE CLAIM PURSUANT TO THE TERMS OF A PROVISION IN THE APPROPRIATION ACT OF JUNE 7, 1924, 43 STAT. 492, THAT:

* * * NOT MORE THAN $4,000 MAY BE EXPENDED FOR SETTLEMENT OF CLAIMS (NOT EXCEEDING $250 EACH) FOR DAMAGES TO PERSONS AND PRIVATE PROPERTY RESULTING FROM THE OPERATION OF AIRCRAFT AT HOME AND ABROAD WHEN EACH CLAIM IS SUBSTANTIATED BY A SURVEY REPORT OF A BOARD OF OFFICERS APPOINTED BY THE COMMANDING OFFICER OF THE NEAREST AVIATION POST AND APPROVED BY THE CHIEF OF AIR SERVICE AND THE SECRETARY OF WAR * * *.

THE THIRD DECISION REFERRED TO IN YOUR LETTER, NAMELY, 13 COMP. GEN. 349, INVOLVED THE QUESTION OF WHETHER A CLAIM FOR CONSEQUENTIAL DAMAGES TO PRIVATE PROPERTY RESULTING FROM THE OPERATION OF AIRCRAFT SHOULD BE REPORTED TO THE CONGRESS FOR AN APPROPRIATION PURSUANT TO THE TERMS OF THE ACT OF APRIL 10, 1928, 45 STAT. 413. CLAIMS UNDER THE ACT OF APRIL 10, 1928, ARE NOT DEPENDENT UPON THE AVAILABILITY OF APPROPRIATED FUNDS AND, THEREFORE, ARE NOT COMPARABLE TO CASES SUCH AS THE PRESENT ONE WHERE THE SOLE QUESTION IS WHETHER THE FACTS PRESENTED ARE SUCH AS TO BRING THE CLAIM WITHIN THE SCOPE AND PURPOSE OF A PARTICULAR PROVISION CONTAINED IN AN APPROPRIATION ACT.

IT WILL BE NOTED THAT THE APPROPRIATION PROVISION HERE IN QUESTION DIFFERS IN CERTAIN RESPECTS FROM THOSE WHICH WERE FOR CONSIDERATION IN CONNECTION WITH THE DECISIONS OF OCTOBER 20, 1923, 3 COMP. GEN. 234 AND JUNE 30, 1925, 4 COMP. GEN. 1074. BY THE TERMS OF THE INSTANT PROVISION A LARGE MEASURE OF AUTHORITY AND DISCRETION IN DETERMINING THE VALIDITY OF CERTAIN DAMAGE CLAIMS IS EXPRESSLY COMMITTED TO THE SECRETARY OF THE NAVY- -- WHO IS EMPOWERED TO "CONSIDER, ASCERTAIN, ADJUST, DETERMINE AND PAY" SUCH CLAIMS. THUS THE FACTUAL DETERMINATION AS TO WHETHER DAMAGES IN THE AMOUNT CLAIMED ACTUALLY HAVE BEEN INCURRED AS THE RESULT OF "OPERATION OF NAVAL AIRCRAFT" IS TO BE MADE BY HIM; AND IN THE ABSENCE OF SOME EVIDENCE OR INDICATION THAT THE FINDINGS MADE ARE ARBITRARY, UNREASONABLE, ETC., SAID FINDINGS WOULD APPEAR TO BE FINAL, AND NOT SUBJECT TO REVIEW OR REVISION BY THIS OFFICE.

FOR CONSIDERATION IN CONNECTION WITH THE MAKING OF SUCH DETERMINATION, YOU ARE ADVISED THAT AN OFFICIAL IN CHARGE OF THE GOAT HERD AT THE BELTSVILLE RESEARCH CENTER, DEPARTMENT OF AGRICULTURE, STATED IN RESPONSE TO AN INFORMAL INQUIRY THAT, WHILE SOME MILCH GOATS ARE TIMID AND TEMPERAMENTAL AND THEIR MILK SUPPLY MIGHT BE AFFECTED BY FEAR RESULTING FROM THE NOISE OF LOW-FLYING AIRCRAFT, HE DOUBTED WHETHER AS A RESULT OF SUCH A DISTURBANCE "MANY DOE GOATS, HEAVY WITH KID" WOULD FALL ,PARALYZED WITH FRIGHT, NEVER TO WALK AGAIN OR DELIVER THEIR KIDS.' IT IS SUGGESTED, THEREFORE, THAT CAREFUL INQUIRY BE MADE AS TO THE REASONABLENESS OF THE DEMANDS OF THE CLAIMANT, PARTICULARLY AS REGARDS THIS PHASE OF THE CLAIM.

HOWEVER, IF IT BE DETERMINED, PURSUANT TO THE AUTHORITY VESTED IN YOU BY THE TERMS OF THE PROVISION OF LAW HERE IN QUESTION, THAT DAMAGES IN THE AMOUNT OF $456, OR A LESSER AMOUNT, WERE ACTUALLY INCURRED BY H. L. CROSBY AND ZELDA CROSBY, AS THE RESULT OF THE OPERATION OF NAVAL AIRCRAFT IN THE VICINITY OF THEIR GOAT DAIRY, THIS OFFICE WILL NOT BE REQUIRED TO OBJECT TO THE PAYMENT OF SUCH AMOUNT AS MAY BE FOUND DUE UNDER THE APPLICABLE APPROPRIATION " AVIATION, NAVY.'