B-51883, OCTOBER 22, 1945, 25 COMP. GEN. 349

B-51883: Oct 22, 1945

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THE GOVERNMENT IS LIABLE FOR DAMAGE TO THE PROPERTY RESULTING FROM USE FOR PURPOSES OTHER THAN THOSE WHICH REASONABLY COULD HAVE BEEN CONTEMPLATED BY THE LESSORS AT THE TIME OF EXECUTING THE LEASES. CONSTITUTE PERMISSIVE WASTE FOR WHICH THE GOVERNMENT IS LIABLE TO THE LESSORS. 1945: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 17. AT THE TIME MANY OF SUCH LEASES WERE EXECUTED. THE STATED PURPOSE IN MANY OF THESE LEASES WAS COVERED BY THE BROAD TERM " REQUIREMENTS OF THE WAR DEPARTMENT.'. THEREFORE THEY DID NOT HAVE A CLEAR CONCEPT OF THE PROBABLE OR POSSIBLE DAMAGE WHICH MIGHT RESULT FROM GOVERNMENT OCCUPANCY. IT WAS IMPOSSIBLE FOR LESSORS TO INTELLIGENTLY ESTIMATE RENTALS WHICH WOULD BE SUFFICIENT TO COMPENSATE THEM FOR CONTEMPLATED DAMAGE TO THEIR PROPERTY.

B-51883, OCTOBER 22, 1945, 25 COMP. GEN. 349

LEASES - DAMAGES UNDER WAR DEPARTMENT LEASES EXECUTED DURING THE WAR EMERGENCY FOR THE RENTAL OF AGRICULTURAL AND FOREST LANDS AT RATES BASED ON APPRAISAL FOR AGRICULTURAL PURPOSES, THE CONTEMPLATED USE OF THE PROPERTY NOT HAVING BEEN MADE KNOWN TO THE LESSORS BECAUSE OF MILITARY SECRECY REQUIREMENTS, LACK OF KNOWLEDGE AND EXPERIENCE ON THE PART OF THE CONTRACTING OFFICERS, OR CHANGING REQUIREMENTS ARISING FROM THE WAR EMERGENCY, THE GOVERNMENT IS LIABLE FOR DAMAGE TO THE PROPERTY RESULTING FROM USE FOR PURPOSES OTHER THAN THOSE WHICH REASONABLY COULD HAVE BEEN CONTEMPLATED BY THE LESSORS AT THE TIME OF EXECUTING THE LEASES, EVEN THOUGH THE LEASES CONTAIN NO PROVISIONS TO THAT EFFECT. IN CONNECTION WITH WAR DEPARTMENT LEASES FOR THE RENTAL OF AGRICULTURAL AND FOREST LANDS AT RATES BASED ON APPRAISAL FOR AGRICULTURAL PURPOSES, ACTS OF OMISSION BY THE GOVERNMENT, OR ACTS BY THIRD PARTIES, RESULTING IN DAMAGE TO THE PREMISES FROM UNCONTROLLED GROWTH OF WEEDS AND UNDERBRUSH, UNCHECKED EROSION, FAILURE TO MAINTAIN PREMISES IN ACCORDANCE WITH PRACTICE OF GOOD HUSBANDRY EFFECTING DIMINUTION OF THE FAIR MARKET VALUE OF THE LAND, AND VANDALISM TO BUILDINGS, CONSTITUTE PERMISSIVE WASTE FOR WHICH THE GOVERNMENT IS LIABLE TO THE LESSORS, EVEN THOUGH THE LEASES CONTAIN NO PROVISION TO THAT EFFECT.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR, OCTOBER 22, 1945:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 17, 1945, AS FOLLOWS:

IN THE INITIAL STAGES OF THE ARMY GROUND FORCES' TRAINING PROGRAM, THE WAR DEPARTMENT FOUND IT NECESSARY TO LEASE FARM LAND THROUGHOUT THE UNITED STATES FOR VARIOUS MILITARY PURPOSES. AT THE TIME MANY OF SUCH LEASES WERE EXECUTED, THE IMMEDIATE NEED DID NOT PERMIT SUFFICIENT OPPORTUNITY FOR ASCERTAINMENT OF THE SPECIFIC PURPOSE OR PURPOSES FOR WHICH THE PROPERTY WOULD BE USED ULTIMATELY, AND THE STATED PURPOSE IN MANY OF THESE LEASES WAS COVERED BY THE BROAD TERM " REQUIREMENTS OF THE WAR DEPARTMENT.' NO INFORMATION COULD BE GIVEN LESSORS OF THE EXACT USE TO BE MADE OF THEIR LAND, AND THEREFORE THEY DID NOT HAVE A CLEAR CONCEPT OF THE PROBABLE OR POSSIBLE DAMAGE WHICH MIGHT RESULT FROM GOVERNMENT OCCUPANCY. IT WAS IMPOSSIBLE FOR LESSORS TO INTELLIGENTLY ESTIMATE RENTALS WHICH WOULD BE SUFFICIENT TO COMPENSATE THEM FOR CONTEMPLATED DAMAGE TO THEIR PROPERTY. UNDER THESE CIRCUMSTANCES LESSORS ACCEPTED THE GOVERNMENT'S OFFER OF THE RENTAL FIGURES BASED ON THE VALUE OF THE LAND FOR FARMING PURPOSES.

SOME OF THE LEASES NEGOTIATED FOR THE GENERAL PURPOSES STATED CONTAINED THE USUAL RESTORATION PROVISION UNDER WHICH THE LESSOR COULD UPON TERMINATION REQUIRE THE GOVERNMENT TO RESTORE THE LEASED PREMISES TO THE CONDITION EXISTING AT THE TIME OF ENTERING UPON THE PREMISES UNDER THE LEASE, REASONABLE AND ORDINARY WEAR AND TEAR AND DAMAGE BY THE ELEMENTS OR BY CIRCUMSTANCES OVER WHICH THE GOVERNMENT HAD NO CONTROL EXCEPTED. OTHER LEASES THIS PROVISION WAS DELETED AND A STATEMENT INCLUDED THAT THE RENTAL COVERED DAMAGES RESULTING FROM REASONABLE USE OF THE PROPERTY. EITHER CASE, IT IS FELT THAT INJUSTICE TO LESSORS WILL RESULT FROM A CONSTRUCTION OF THE PROVISIONS OF SUCH LEASES, WHICH WOULD RELIEVE THE GOVERNMENT FROM RESPONSIBILITY FOR ANY AND ALL DAMAGE TO THE LEASED PREMISES.

LEASE NO. W-2287-ENG-488, AND SUPPORTING DATA ENCLOSED HEREWITH, ILLUSTRATES THE PROBLEM WITH WHICH THIS DEPARTMENT IS CONFRONTED. THE LEASED LAND CONSISTS OF 575 ACRES OF FARM LAND, PARTLY WOODED. THE LEASE STATED THAT THE INITIAL RENTAL PAYMENT OF $675 INCLUDED PAYMENT FOR "ALL EXISTING GROWING OR PLANTED CROPS AND REASONABLE DAMAGES RESULTING FROM THE USE HEREIN CONTEMPLATED.' THE PURPOSE FOR WHICH THE LAND WAS TO BE USED WAS STATED IN THE LEASE TO BE " REQUIREMENTS OF THE WAR DEPARTMENT.' THE LAND WAS ACTUALLY USED FOR RIFLE RANGE. THE USUAL RESTORATION CLAUSE WAS DELETED FROM THE LEASE.

THE FAIR ANNUAL RENTAL OF THE LEASED PROPERTY WAS APPRAISED BY A QUALIFIED APPRAISER AT $600.00 AS A FAIR RETURN ON THE PROPERTY FOR ITS HIGHEST AND BEST USE, AS FARM LAND; HOWEVER, THE LEASE PROVIDED FOR AN ANNUAL RENTAL OF $500.00. THE APPRAISAL WAS PREPARED ON MARCH 20, 1943, WHEREAS THE TERM OF THE LEASE BEGAN APRIL 1, 1942. NO CROPS WERE INCLUDED IN THE APPRAISAL AS THEY HAD ALREADY BEEN REMOVED. HOWEVER, THE NEGOTIATOR FOR THE GOVERNMENT STATES THAT OF THE INITIAL PAYMENT OF $675.00 MADE BY THE GOVERNMENT FOR THE PERIOD APRIL 1, 1942 TO JUNE 30, 1942, $125.00 WAS FOR RENT FOR THAT PERIOD, AND $550.00 WAS FOR CROPS; THEREFORE, NO PAYMENT WAS MADE FOR CONTEMPLATED DAMAGES.

THE APPRAISAL REPORT OF DAMAGES DUE TO ACTS OF COMMISSION OR OMISSION BY THE GOVERNMENT, DATED MARCH 29, 1945, SHOWS THAT THE GOVERNMENT, DURING ITS USE AND OCCUPANCY OF THE PROPERTY, ALLOWED BRUSH AND BRIERS TO GROW UNCONTROLLED, DITCHES TO ERODE, TERRACES TO BE FILLED, WIRE FENCING TO BE DESTROYED BY CUTTING TO ALLOW GOVERNMENT VEHICULAR TRAFFIC, AND BUILDINGS TO BE DAMAGED BY VANDALISM, AND THAT THE GOVERNMENT HAD GENERALLY FAILED TO MAINTAIN THE PREMISES. THE DAMAGE TO THE MAIN DWELLING, IN ADDITION TO TENANT DWELLINGS AND OUTBUILDINGS, WAS CAUSED BY ACTS OF VANDALISM AND LACK OF MAINTENANCE. VANDALS ENTERED UPON THE PREMISES AND REMOVED LUMBER OR PORTIONS OF BUILDINGS, AS A CONSEQUENCE OF WHICH THE BUILDINGS WERE FURTHER DAMAGED BY THE ELEMENTS. THE FEE VALUE OF THE PROPERTY BEFORE GOVERNMENT OCCUPANCY WAS APPRAISED AT $11,150 AND AFTER DEPRECIATION DUE TO GOVERNMENT OCCUPANCY, THE FEE VALUE WAS APPRAISED AT $9,450.00, A LOSS TO THE LESSOR OF $1,700.00. IT IS IMPROBABLE THAT SUCH A USE OF THE PROPERTY AND SUCH RESULTING DAMAGE WAS WITHIN THE CONTEMPLATION OF THE LESSOR OR THE GOVERNMENT NEGOTIATOR; THEREFORE, IT IS THE OPINION OF THIS DEPARTMENT THAT PAYMENT TO THE LESSOR OF AN AMOUNT NOT EXCEEDING $1,700.00 WOULD BE JUSTIFIED.

THIS OFFICE IS AWARE OF YOUR DECISION IN BATES V. U.S., 1 COMP. DEC. (GEN.) 134-135, HOLDING THAT THE GOVERNMENT WAS NOT LIABLE FOR DAMAGE TO THE SURFACE OF THE GROUND RESULTING FROM CONSTRUCTION OF ROADS AND EXCAVATIONS FOR BUILDINGS IN THE ABSENCE OF A SPECIFIC PROVISION TO THAT EFFECT IN THE LEASE, WHERE IT WAS EXPRESSLY PROVIDED THAT THE PROPERTY WAS TO BE USED AS A ,TRAINING CAMP AND MANEUVER GROUND AND FOR THE CONSTRUCTION OF NECESSARY BUILDINGS.' IT APPEARS THAT THIS DECISION WAS MODIFIED TO SOME EXTENT BY YOUR DECISION (7 C.G. 243) WHICH HELD THAT, IRRESPECTIVE OF THE COVENANTS IN A LEASE, THERE IS TO BE IMPLIED IN ALL LEASES A COVENANT AGAINST WASTE, AND THAT THE GOVERNMENT, AS WELL AS AN INDIVIDUAL, IS BOUND BY SUCH IMPLIED COVENANT WHERE IT ENTERS INTO A LEASE. IN THE LATTER CASE THE LEASE PROVIDED THAT THE LAND WAS TO BE OCCUPIED AS A CAMP SITE, AND TWO BUILDINGS THEREON WERE DESTROYED. IT WAS HELD IN THAT CASE THAT EVEN IN THE ABSENCE OF ANY PROVISION MAKING THE GOVERNMENT LIABLE IN DAMAGES FOR WASTE OR REQUIRING THE GOVERNMENT TO RESTORE THE LEASED PROPERTY TO THE CONDITION IN WHICH IT WAS PRIOR TO OCCUPATION UNDER THE LEASE, THE DESTRUCTION OF THE TWO BUILDINGS WAS NOT AUTHORIZED UNDER THE LEASE. THIS CASE CITES BOSTWICK VS. U.S., 94 U.S. 53, AS AUTHORITY FOR THE RULE THAT THERE IS AN IMPLIED OBLIGATION ON THE PART OF THE LESSEE TO USE THE LEASED PROPERTY SO THAT IT WILL NOT BE DAMAGED BY WILFUL OR NEGLIGENT CONDUCT OF THE LESSEE.

IN VIEW OF THE FOREGOING, THE FOLLOWING QUESTIONS ARE PRESENTED FOR YOUR DECISION:

A. WHERE THE WAR DEPARTMENT HAS OBTAINED THE USE OF AGRICULTURAL AND FOREST LANDS BY LEASE, IN WHICH THE PURPOSE IS DEFINED AS " REQUIREMENTS OF THE WAR DEPARTMENT," AND WHERE IT IS DEFINITELY DETERMINED THAT THE RENTAL CONSIDERATION IS BASED ON APPRAISAL OF THE LAND FOR AGRICULTURAL PURPOSES AND WHERE THE LEASE CONTAINS NO CLAUSE EXPRESSLY OBLIGATING THE GOVERNMENT TO RESTORE THE PREMISES:

(1) ARE YOU REQUIRED TO OBJECT TO THE WAR DEPARTMENT RESTORING THE PREMISES TO THE CONDITION EXISTING AT THE TIME OF ENTRY UPON THE PREMISES UNDER THE LEASE, (REASONABLE AND ORDINARY WEAR AND TEAR AND DAMAGE BY THE ELEMENTS, OR BY CIRCUMSTANCES OVER WHICH THE GOVERNMENT HAS NO CONTROL, EXCEPTED) OR TO THE MAKING PAYMENT IN LIEU OF SUCH RESTORATION?

(2) ARE YOU REQUIRED TO OBJECT TO THE WAR DEPARTMENT CONSIDERING THE THE UNCONTROLLED GROWTH OF WEEDS AND UNDERBRUSH, UNCHECKED EROSION OF LAND, VANDALISM TO BUILDINGS, OR THE FAILURE OF THE GOVERNMENT TO MAINTAIN THE PREMISES IN ACCORDANCE WITH PRACTICES OF GOOD HUSBANDRY RESULTING IN A DIMINUTION OF THE FAIR MARKET VALUE OF THE LAND, AS DAMAGES RESULTING FROM CAUSES OTHER THAN A REASONABLE USE FOR THE PURPOSE FOR WHICH THE LAND WAS LEASED AND FOR WHICH PAYMENT MAY BE MADE.

A FAVORABLE DECISION OF THE QUESTIONS SUBMITTED WILL BE APPRECIATED.

THE WELL ESTABLISHED GENERAL RULE IS THAT, IN THE ABSENCE OF A SPECIFIC AGREEMENT TO THE CONTRARY, A TENANT IS NOT LIABLE FOR DAMAGE TO OR DETERIORATION OF THE LEASED PROPERTY RESULTING FROM ORDINARY WEAR AND TEAR IN THE USE OF THE PROPERTY FOR THE PURPOSE FOR WHICH IT WAS LEASED. C.J. 196: 64 L.R.A. 653, NOTE; 1 COMP. GEN. 134; 5 ID. 126; 16 ID. 92; 18 ID. 8. IT HAS BEEN HELD, ALSO, THAT IN THE ABSENCE OF A SPECIFIC PROVISION TO THE CONTRARY THERE IS IN EVERY LEASE AN IMPLIED OBLIGATION ON THE TENANT TO SURRENDER THE LEASED PROPERTY AT THE END OF HIS TENANCY IN AS GOOD CONDITION AS AT THE BEGINNING OF THE TENANCY, EXCEPT FOR REASONABLE AND ORDINARY WEAR AND TEAR AND DAMAGE BY THE ELEMENTS. MOUNT MANRESA V. UNITED STATES, 70 C.1CLS. 144. SEE, ALSO, UNITED STATES V. BOSTWICK, 94 U.S. 53; 7 COMP. GEN. 243; 23 ID. 477. IN UNITED STATES V. BOSTWICK, SUPRA, THE COURT SAID:

BUT IN EVERY LEASE THERE IS, UNLESS EXCLUDED BY THE OPERATION OF SOME EXPRESS COVENANT OR AGREEMENT, AN IMPLIED OBLIGATION ON THE PART OF THE LESSEE TO SO USE THE PROPERTY AS NOT UNNECESSARILY TO INJURE IT, OR, AS IT IS STATED BY MR. COMYN,"TO TREAT THE PREMISES DEMISED IN SUCH MANNER THAT NO INJURY BE DONE TO THE INHERITANCE, BUT THAT THE ESTATE MAY REVERT TO THE LESSOR UNDETERIORATED BY THE WILFUL OR NEGLIGENT CONDUCT OF THE LESSEE.' COM. LAND AND TEN. 188. THIS IMPLIED OBLIGATION IS PART OF THE CONTRACT ITSELF, AS MUCH SO AS IF INCORPORATED INTO IT BY EXPRESS LANGUAGE. IT RESULTS FROM THE RELATION OF LANDLORD AND TENANT BETWEEN THE PARTIES WHICH THE CONTRACT CREATES. * * *

IN THE MATTERS REFERRED TO IN YOUR ABOVE-QUOTED LETTER, IT APPEARS THAT THE INVOLVED INJURIES OF THE LEASED PROPERTY ARISING FROM ACTIVE OPERATIONS OF THE WAR DEPARTMENT WERE SUCH AS PROPERLY TO BE REGARDED AS RESULTING FROM ORDINARY WEAR AND TEAR FROM THE USE MADE OF THE PROPERTY. HOWEVER, IT APPEARS FURTHER THAT THE CONTEMPLATED USE OF THE PROPERTY WAS NOT STATED SPECIFICALLY IN THE LEASES AND WAS NOT KNOWN TO THE LESSORS AT THE TIME OF EXECUTING THE LEASES, BUT THAT THE RENTAL FIXED IN THE LEASES WAS BASED ON APPRAISAL OF THE LAND FOR AGRICULTURAL PURPOSES. UNDER SUCH CIRCUMSTANCES, WHETHER THE FAILURE TO MAKE KNOWN TO THE LESSORS THE INTENDED USE OF THE LEASED PROPERTY RESULTED FROM THE REQUIREMENTS OF MILITARY SECRECY OR FROM LACK OF KNOWLEDGE AND EXPERIENCE ON THE PART OF CONTRACTING OFFICERS OR FROM CHANGING REQUIREMENTS OF THE GOVERNMENT ARISING FROM THE WAR EMERGENCY, THERE APPEARS A REASONABLE BASIS FOR THE VIEW THAT THE GOVERNMENT IS LIABLE FOR DAMAGE TO THE PROPERTY BEYOND THE DAMAGE WHICH WOULD HAVE RESULTED FROM PROPER USE OF THE PROPERTY FOR PURPOSES SUCH AS REASONABLY CONTEMPLATED BY THE LESSOR AT THE TIME OF EXECUTING THE LEASES. CF. 19 COMP. GEN. 695, WHEREIN IT WAS HELD THAT PAYMENTS PROPERLY MIGHT BE MADE UNDER A SUPPLEMENTAL LEASE FOR HEAT FURNISHED BY A LESSOR DURING A NIGHT SHIFT WHICH WAS NOT CONTEMPLATED BY EITHER THE LESSOR OR THE GOVERNMENT AT THE TIME OF THE EXECUTION OF THE ORIGINAL LEASE, ALTHOUGH THE SAID ORIGINAL LEASE DID NOT LIMIT THE HOURS OF FURNISHING HEAT.

WITH RESPECT TO THE DAMAGES REFERRED TO IN THE FIFTH PARAGRAPH OF YOUR LETTER, INSOFAR AS THEY RELATE TO ACTS OF OMISSION BY THE GOVERNMENT AND ACTS PRESUMABLY BY THIRD PARTIES, THEY APPEAR TO BE PROPERLY CLASSIFIABLE AS PERMISSIVE WASTE FOR WHICH A LESSEE IS LIABLE TO A LESSOR. SUCH DAMAGES DO NOT APPEAR TO HAVE BEEN NECESSARY RESULTS OF THE USE OF PROPERTY FOR THE PURPOSE CONTEMPLATED BY EITHER THE LESSOR OR THE GOVERNMENT BUT APPEAR TO HAVE RESULTED FROM THE GOVERNMENT'S NEGLECT OF ITS DUTY AS LESSEE. IN PARROTT V. BARNEY, 18 F. CASE. 1236, NO. 10,773 (AFFIRMED BY 82 U.S. 524), THE COURT SAID (PAGE 1241):

* * * THE RULE SEEMS TO BE ESTABLISHED, THAT, WITH RESPECT TO LIABILITY FOR WASTE, THE TENANT IS IN A POSITION ANALOGOUS TO THAT OF A COMMON CARRIER, AND WITHOUT SOME SPECIAL AGREEMENT TO THE CONTRARY, RESPONSIBLE FOR ALL WASTE, HOWEVER OR BY WHOM COMMITTED, EXCEPT IT BE OCCASIONED BY ACT OF GOD, THE PUBLIC ENEMY, OR THE ACT OF THE REVERSIONER HIMSELF. * * * IN 64 L.R.A. 661 (NOTE), IT IS SAID:

THE FACT THAT INJURIES TO THE PREMISES WERE CAUSED BY THIRD PARTIES MAKES NO DIFFERENCE IN THE LESSEE'S LIABILITY TO LEAVE THE PREMISES IN GOOD REPAIR, IF HE HAS COVENANTED TO DO SO.

IN VIEW OF THE FOREGOING AND GIVING SPECIAL CONSIDERATION TO THE WAR EMERGENCY EXISTING AT THE TIME OF THE EXECUTION OF THE INVOLVED LEASES, EACH OF THE QUESTIONS STATED IN THE FINAL PARAGRAPH OF YOUR LETTER IS ANSWERED IN THE NEGATIVE; THAT IS, THIS OFFICE WILL NOT BE REQUIRED TO OBJECT TO THE USE OF APPROPRIATED MONEYS FOR THE PURPOSES AND UNDER THE CONDITIONS SET OUT IN THE SAID QUESTIONS.