B-28269, AUGUST 27, 1942, 22 COMP. GEN. 165

B-28269, AUGUST 27, 1942, 22 COMP. GEN. 165

PURCHASE OF LAND - RESERVATION OF RIGHT IN VENDORS TO RAZE AND REMOVE BUILDINGS LOCATED THEREON THERE IS NO RULE OF LAW, STATUTORY OR OTHERWISE, WHICH PROHIBITS THE PURCHASE OF LAND BY THE GOVERNMENT EXCLUSIVE OF BUILDINGS AND OTHER FIXTURES WHICH ARE LOCATED THEREON AND WHICH ARE NOT WANTED OR NEEDED IN CARRYING OUT THE PURPOSES FOR WHICH THE LAND IS TO BE ACQUIRED, AND, THEREFORE, THE CONTRACT OF SALE MAY PROVIDE THAT TITLE TO THE SAID BUILDINGS AND OTHER FIXTURES SHALL REMAIN IN THE VENDOR WHO IS TO RAZE AND REMOVE THEM WITHIN A REASONABLE SPECIFIED TIME AFTER THE SALE IS CONSUMMATED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE INTERIOR, AUGUST 27, 1942:

I HAVE YOUR LETTER OF AUGUST 18, 1942, AS FOLLOWS:

THE ACT OF CONGRESS APPROVED MAY 26, 1936 (49 STAT. 1373), PROVIDING FOR THE ESTABLISHMENT OF THE FORT FREDERICA NATIONAL MONUMENT AT SAINT SIMON ISLAND, GEORGIA, AUTHORIZES THE SECRETARY OF THE INTERIOR TO ACCEPT DONATIONS OF FUNDS FOR THE PURCHASE OF LAND AND INTERESTS IN LAND WITHIN THE BOUNDARIES OF THE MONUMENT AND TO ACQUIRE ON BEHALF OF THE UNITED STATES OUT OF THE DONATED FUNDS, EITHER BY PURCHASE AT PRICES DEEMED BY HIM REASONABLE, OR BY CONDEMNATION UNDER THE PROVISIONS OF THE ACT OF AUGUST 1, 1888, SUCH TRACTS WITHIN THE MONUMENT AS MAY BE NECESSARY FOR THE COMPLETION THEREOF.

PURSUANT TO THIS AUTHORITY, THIS DEPARTMENT HAS ACCEPTED A DONATION OF $45,000 FROM THE FORT FREDERICA ASSOCIATION, INCORPORATED, FOR USE IN ACQUIRING THE LANDS NEEDED TO COMPLETE THE MONUMENT. ONE OF THE CONDITIONS OF THE DONATION IS:

"THAT THE DEPARTMENT OF THE INTERIOR WILL ATTEMPT TO ACQUIRE THE REMAINING LANDS NEEDED TO COMPLETE THE MONUMENT, BY EXPENDING SO MUCH AS NECESSARY OF THE FUND HEREBY TENDERED. HOWEVER, IF IT IS FINALLY FOUND THAT ALL THE REMAINING LANDS CANNOT BE ACQUIRED WITHOUT THE EXPENDITURE OF ADDITIONAL FUNDS, AND THAT SUCH ADDITIONAL FUNDS CANNOT BE SECURED WHEN SUCH FINAL DETERMINATION IS MADE AND COMMUNICATED TO THE ASSOCIATION, THE ATTEMPT TO ACQUIRE SUCH ADDITIONAL LANDS SHALL BE ABANDONED AND THE FUND, LESS ANY AMOUNTS OBLIGATED OR EXPENDED FOR INCIDENTAL EXPENSES, SHALL BE RETURNED TO THE FORT FREDERICA ASSOCIATION, INCORPORATED.'

OPTIONS FOR ALL OF THE REQUIRED LANDS HAVE BEEN NEGOTIATED UNDER THE DONATED FUNDS. HOWEVER, SEVERAL OF THE OPTIONS CONTAIN PROVISIONS FOR THE REMOVAL BY THE VENDORS OF CERTAIN OF THE BUILDINGS ON THE PREMISES. WHILE THESE PROVISIONS ARE STATED IN THE OPTIONS IN THE FORM OF RESALE" AGREEMENTS, IT WAS THE INTENTION OF THE NEGOTIATING OFFICER TO PROVIDE FOR THE RESERVATION BY THE VENDORS OF THE RIGHT TO RAZE, REMOVE, AND SALVAGE THE MATERIALS CONTAINED IN THE BUILDINGS.

AS A TYPICAL CASE, WE ARE ENCLOSING AN OPTION EXECUTED BY FRANCES P. BURNS AND ALLEN A. BURNS, IN WHICH THEY OFFER TO SELL A TRACT OF LAND CONTAINING THREE ACRES, MORE OR LESS, TO THE UNITED STATES AT A GROSS PRICE OF $3,850 BUT AGREE TO PAY THE UNITED STATES THE SUM OF $150 FOR THE DWELLING AND OUT-BUILDINGS ON THE PREMISES, RESULTING IN A NET PURCHASE PRICE TO THE GOVERNMENT OF $3,700. THE VENDORS FURTHER AGREE TO RAZE AND REMOVE THE BUILDINGS AT THEIR OWN EXPENSE WITHIN SIX MONTHS FROM THE DATE OF APPROVAL OF THE OPTION. THERE IS ALSO ENCLOSED AN APPRAISAL REPORT SUBMITTED BY THE NEGOTIATING OFFICER, SHOWING THE PRESENT VALUE OF THE PROPERTY IN QUESTION TO BE $3,850, WITH THE EXPLANATION THAT THE VALUE OF THE PROPERTY TO THE GOVERNMENT "WITH THE RIGHT RESERVED BY THE OWNER TO RAZE, REMOVE, AND SALVAGE MATERIALS OF THE DWELLING AND OUT-BUILDINGS" IS $3,700 AND THAT THE VALUE OF SUCH MATERIALS AS SALVAGE IS ESTIMATED AT $150.

THE BUILDINGS INVOLVED IN THESE TRANSACTIONS HAVE NO HISTORIC INTEREST AND ARE NOT NEEDED TO CARRY OUT THE PURPOSES OF THE ACT OF MAY 26, 1936, SUPRA, BUT, AS A MATTER OF FACT, CONSTITUTE AN INTRUSION UPON THE HISTORIC SITE AND AN OBSTRUCTION TO THE RESTORATION AND DEVELOPMENT OF THE AREA. THEY WOULD, THEREFORE, HAVE TO BE RAZED AND REMOVED AT CONSIDERABLE EXPENSE TO THE GOVERNMENT IF THE OPTION ORS ARE NOT PERMITTED TO RESERVE THE RIGHT TO DO SO IN CONNECTION WITH THE SALE OF THE PROPERTIES TO THE UNITED STATES. THE SALVAGE MATERIALS WOULD BE PRACTICALLY VALUELESS TO THE GOVERNMENT, AND IN VIEW OF THE ISOLATED LOCATION OF THE MONUMENT, IT IS BELIEVED THAT ANY ATTEMPT TO DISPOSE OF THE MATERIALS AT PUBLIC SALE WOULD BE FRUITLESS. ON THE OTHER HAND, IF THE TRANSACTIONS ARE CARRIED OUT IN ACCORDANCE WITH THE INTENT OF THE PARTIES, THE GOVERNMENT WOULD DERIVE, IN ADDITION TO THE SAVINGS IN THE LAND PURCHASE FUNDS, THE BENEFIT OF HAVING THE SITES CLEARED AT NO EXPENSE. IT IS ESTIMATED BY THE NATIONAL PARK SERVICE THAT THE COST OF CLEARING THE SITES WOULD AMOUNT TO AT LEAST $3,000 UNDER PRESENT CONDITIONS.

ON THE BASIS OF THE TEN OPTIONS SECURED, THE "NET" PURCHASE PRICES WILL AGGREGATE $43,640, WHILE THE "GROSS" PURCHASE PRICES, WITHOUT RESERVATION BY THE OPTION ORS OF THE RIGHT TO REMOVE BUILDINGS, WILL TOTAL $45,390. TO COMPLETE THESE PURCHASES ON THE BASIS OF THE "GROSS" PRICES WOULD RESULT IN A DEFICIT IN THE FUNDS DONATED OF APPROXIMATELY $1,700 AFTER TAKING INTO CONSIDERATION NECESSARY INCIDENTAL EXPENSES. THEREFORE, UNDER THE TERMS UPON WHICH THE DONATION WAS ACCEPTED, THE WHOLE PROJECT MUST FAIL IF THE GOVERNMENT DOES NOT EXERCISE THE OPTIONS ON THE NET PRICE BASIS. IN THIS CONNECTION, THE DONOR HAS BEEN INFORMED OF THE BASIS ON WHICH THE OPTIONS WERE NEGOTIATED AND HAS GIVEN ITS UNQUALIFIED APPROVAL OF CLOSING THESE PROPOSED PURCHASES ON THE BASIS OF THE "NET" PRICES. FACT, THE ASSOCIATION URGES THAT THE OPTIONS BE EXERCISED BY THE GOVERNMENT AT THE EARLIEST POSSIBLE DATE IN ORDER THAT THE MONUMENT MAY BE ESTABLISHED WITH A MINIMUM OF DELAY.

IN VIEW OF ALL THE CIRCUMSTANCES, IT IS BELIEVED THAT THE BEST INTERESTS OF THE UNITED STATES WILL BE SERVED IF THE PURCHASES ARE CARRIED OUT ON THE BASIS OF THE PROPOSALS MADE BY THE PROPERTY OWNERS BY PAYMENT TO THEM OF THE NET AMOUNT AGREED TO AND PERMITTING THEM TO RESERVE IN THE CONVEYANCE OF THE PROPERTIES TO THE UNITED STATES THE RIGHT TO REMOVE THE IMPROVEMENTS. IN THIS MANNER NO RESALE OF THE IMPROVEMENTS TO THE FORMER OWNERS WOULD BE INVOLVED AND THE INTENTION OF THE PARTIES UNDER THE AGREEMENTS WOULD BE FULLY CARRIED OUT. HOWEVER, BEFORE THE OPTIONS ARE FORMALLY APPROVED AND ACCEPTED BY THIS DEPARTMENT, YOUR DECISION IS REQUESTED AS TO WHETHER THERE WOULD BE ANY OBJECTION TO PROCEEDING UNDER THESE AGREEMENTS ACCORDINGLY.

SEVERAL OF THE OPTION ORS DESIRE PROMPT ASSURANCE FROM THIS DEPARTMENT THAT THE TRANSACTIONS WILL BE CONSUMMATED AS PROPOSED, IN ORDER THAT THEY MAY COMPLETE ARRANGEMENTS TO PURCHASE HOMES ELSEWHERE. EARLY CONSIDERATION OF THIS MATTER WOULD, THEREFORE, BE APPRECIATED.

SECTION 3618 OF THE REVISED STATUTES AS AMENDED, 31 U.S.C. 487, PROVIDES, AMONG OTHER THINGS, THAT ALL PROCEEDS OF SALES OF PUBLIC PROPERTY OF ANY KIND (WITH CERTAIN EXCEPTIONS NOT HERE PERTINENT) "SHALL BE DEPOSITED AND COVERED INTO THE TREASURY AS MISCELLANEOUS RECEIPTS, ON ACCOUNT OF "PROCEEDS OF GOVERNMENT PROPERTY," AND SHALL NOT BE WITHDRAWN OR APPLIED, EXCEPT IN CONSEQUENCE OF A SUBSEQUENT APPROPRIATION MADE BY LAW.' FOLLOWS THAT IF THE UNITED STATES SHOULD ACQUIRE TITLE TO THE REMAINING LAND NECESSARY TO COMPLETE THE FORT FREDERICA NATIONAL MONUMENT, TOGETHER WILL ALL BUILDINGS AND OTHER FIXTURES WHICH NORMALLY ARE REGARDED AS PART OF THE REALTY, THEN ANY SUBSEQUENT SALE OF SUCH BUILDINGS, ETC., WOULD CONSTITUTE A SALE OF PUBLIC PROPERTY AND THE PROCEEDS THEREOF WOULD BE FOR DEPOSITING INTO THE TREASURY AS MISCELLANEOUS RECEIPTS.

HOWEVER, SO FAR AS IS KNOWN TO THIS OFFICE THERE IS NO RULE OF LAW, STATUTORY OR OTHERWISE, WHICH WOULD PROHIBIT THE PRESENT OWNERS OF THE INVOLVED PROPERTY FROM REMOVING FROM THE LAND, PRIOR TO SALE TO THE UNITED STATES, ANY BUILDINGS OR FIXTURES WHICH MAY BE LOCATED THEREON; OR IN TRANSFERRING THE LAND TO THE UNITED STATES ON A BASIS WHICH EXPRESSLY RESERVES TO THEMSELVES ALL RIGHT AND TITLE IN AND TO SAID BUILDINGS. OTHER WORDS, SINCE THE UNITED STATES COULD PURCHASE THE LAND WITH BUILDINGS INCLUDED AND THEN IMMEDIATELY DISPOSE OF THE BUILDINGS BY SALE OR OTHERWISE, NO REASON IS PERCEIVED WHY THE UNITED STATES CANNOT PURCHASE THE LAND WITHOUT THE BUILDINGS, FOR IN EITHER EVENT THE NET RESULT WOULD BE THE SAME, NAMELY, THE UNITED STATES WOULD ACQUIRE THE LAND FREE OF BUILDINGS. IN THIS CONNECTION ATTENTION IS INVITED TO THE STATEMENT OF THE COURT IN THE CASE OF WESTCHESTER FIRE INSURANCE COMPANY V. ROAN, 215 S.W. 985, 987 THAT "WE SEE NO REASON WHY PARTIES MAY NOT BY EXPRESS AGREEMENT CONSTRUCTIVELY SEVER THE FIXTURES FROM THE SOIL SO AS TO REQUIRE TREATMENT OF THE FIXTURES AS PERSONAL PROPERTY.' SIMILARLY IN THE CASE OF STRAW V. STRAW, 39 ATLANTIC 1095, 1096, THE SUPREME COURT OF VERMONT STATED:

* * * THE RESERVATION, BY IMPLICATION, GAVE THE PLAINTIFF A LICENSE TO GO UPON THE PREMISES AND REMOVE THE WHEEL AND SHAFTING. THE RESERVATION, IN LEGAL EFFECT, WAS NOT UNLIKE THE SALE OF GROWING TREES, STONES, OR OF A BUILDING. IF TO BE REMOVED IN A SHORT TIME, THE LAW TREATS THEM, AS THE PARTIES DO, NOT AS ATTACHED TO AND A PART OF THE REALTY, BUT AS PERSONAL CHATTELS. * * * SEE ALSO SPENCER AND CO. V. BROWN, 198 S.W. 1179, 1180.

WHILE MATTERS RELATING TO OWNERSHIP AND TRANSFER OF REAL PROPERTY ARE LARGELY GOVERNED BY THE LAW OF THE STATE IN WHICH THE PROPERTY IS LOCATED, THERE APPEARS NO REASON TO BELIEVE THAT THE RULE AS ABOVE EXPRESSED DOES NOT PREVAIL IN GEORGIA WHERE THE LAND IN QUESTION IS LOCATED.

SO FAR AS THE ACT OF MAY 26, 1936, REFERRED TO IN YOUR LETTER, IS CONCERNED THERE IS NOTHING CONTAINED THEREIN WHICH PROHIBITS THE SECRETARY OF THE INTERIOR, IN CONNECTION WITH THE ACQUIRING OF LAND AS A SITE FOR FORT FREDERICA NATIONAL MONUMENT, FROM PURCHASING THE NECESSARY PROPERTY EXCLUSIVE OF BUILDINGS IF THE PURPOSES OF THE ACT WILL BE SERVED BY ACQUIRING THE PROPERTY ON THAT BASIS. IN THIS CONNECTION IT IS NOTED THAT THE SECRETARY OF THE INTERIOR IS AUTHORIZED TO USE DONATED FUNDS SUCH AS THOSE HERE IN QUESTION IN PURCHASING "LAND, INTERESTS IN LAND, BUILDINGS, STRUCTURES, AND OTHER PROPERTY WITHIN THE BOUNDARIES OF THE SAID NATIONAL MONUMENT.' ( ITALICS SUPPLIED.) IT IS STATED IN YOUR LETTER THAT:

THE BUILDINGS INVOLVED IN THESE TRANSACTIONS HAVE NO HISTORIC INTEREST AND ARE NOT NEEDED TO CARRY OUT THE PURPOSES OF THE ACT OF MAY 26, 1936, SUPRA, BUT, AS A MATTER OF FACT, CONSTITUTE AN INTRUSION UPON THE HISTORIC SITE AND AN OBSTRUCTION TO THE RESTORATION AND DEVELOPMENT OF THE AREA. * * THERE WOULD APPEAR NO REASON FOR THE SECRETARY OF THE INTERIOR, IN CARRYING OUT THE PURPOSES OF SAID ACT, TO PURCHASE ANY BUILDINGS OR OTHER PROPERTY OR INTEREST THEREIN WHICH ARE ,NOT NEEDED TO CARRY OUT THE PURPOSES OF THE ACT," AND WHICH IN FACT WOULD HINDER THE CARRYING OUT OF THOSE PURPOSES. ACCORDINGLY, NO OBJECTION IS PERCEIVED TO THE PURCHASE OF SUCH PROPERTY ON A BASIS WHICH WILL RESULT IN ACQUISITION OF THE LAND WITHOUT THE BUILDINGS--- THE TITLE OF SAID BUILDINGS BEING SPECIFICALLY RESERVED IN THE VENDOR OF SAID LAND.

NOT ONLY WOULD THE PURCHASE BY THE UNITED STATES OF PROPERTY WHICH IT DOES NOT NEED OR WANT, WITH IMMEDIATE RESALE, CONSTITUTE A USELESS PROCEDURE BUT, FOR REASONS WHICH ARE SUFFICIENTLY SET FORTH IN YOUR LETTER, SUCH ACTION MIGHT OPERATE TO DEFEAT THE DONATION BY THE FORT FREDERICA ASSOCIATION AND THEREBY JEOPARDIZE THE PROMPT ACCOMPLISHMENT OF THE PURPOSE FOR WHICH THE ACT OF MAY 26, 1936, WAS ENACTED INTO LAW. IS SUGGESTED, THEREFORE, THAT IN THE PREPARATION OF THE CONTRACTS OF SALE THERE BE CAREFULLY AVOIDED THE USE OF ANY LANGUAGE WHICH WILL CONVEY THE THOUGHT THAT TITLE TO THE BUILDINGS IS BEING ACQUIRED BY THE UNITED STATES, WITH SUBSEQUENT RESALE BACK TO THE PRESENT OWNERS.

IT IS SUGGESTED, ALSO, THAT THERE BE INCORPORATED INTO THE TERMS OF EACH CONTRACT OF SALE A PROVISION EXPRESSLY REQUIRING THE VENDOR TO REMOVE SAID BUILDINGS WITHIN A SPECIFIED TIME WITH A STATEMENT OF THE RIGHTS AND LIABILITIES OF THE PARTIES IN THE EVENT OF FAILURE TO DO SO. ..END :