B-6999, NOVEMBER 28, 1939, 19 COMP. GEN. 528

B-6999: Nov 28, 1939

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REQUESTS FOR DECISIONS INVOLVING PROPOSED REGULATIONS WHERE FENCES ERECTED BY PRIVATE PROPERTY OWNERS ARE FOUND WITHIN RIGHTS- OF-WAY AS WIDENED FOR HIGHWAY IMPROVEMENTS UNDER WORK PROJECTS ADMINISTRATION AND PUBLIC ROADS ADMINISTRATION PROJECTS. REMOVAL OF THE FENCES WILL BE NECESSARILY INCIDENT TO CLEARING THE NEW ROADWAY. THEIR RESETTING WILL RESULT IN A BENEFIT TO THE PUBLIC IN ITS USE OF THE ROAD. THERE IS NO LEGAL OBJECTION TO THE USE OF PROJECT LABOR. THE FURNISHING OF NEW MATERIAL IN LIEU OF THE OLD IS OBJECTIONABLE UNDER THE RULE THAT PUBLIC FUNDS ARE NOT AVAILABLE GENERALLY FOR IMPROVING PRIVATE PROPERTY. WHERE A DECISION AS TO THE EXPENDITURE OF APPROPRIATED FUNDS UNDER A PROPOSED REGULATION IS DESIRED.

B-6999, NOVEMBER 28, 1939, 19 COMP. GEN. 528

RELOCATING FENCES IN CONNECTION WITH ROAD IMPROVEMENTS; REQUESTS FOR DECISIONS INVOLVING PROPOSED REGULATIONS WHERE FENCES ERECTED BY PRIVATE PROPERTY OWNERS ARE FOUND WITHIN RIGHTS- OF-WAY AS WIDENED FOR HIGHWAY IMPROVEMENTS UNDER WORK PROJECTS ADMINISTRATION AND PUBLIC ROADS ADMINISTRATION PROJECTS, AND REMOVAL OF THE FENCES WILL BE NECESSARILY INCIDENT TO CLEARING THE NEW ROADWAY, AND THEIR RESETTING WILL RESULT IN A BENEFIT TO THE PUBLIC IN ITS USE OF THE ROAD, WITH NO SUBSTANTIAL BETTERMENT ESPECIALLY BENEFITING THE ABUTTING LANDOWNERS, THERE IS NO LEGAL OBJECTION TO THE USE OF PROJECT LABOR, PAID FOR WITH FEDERAL FUNDS, FOR RESETTING THE FENCES ON OR NEAR THE BOUNDARY LINES AS ADJUSTED, BUT THE FURNISHING OF NEW MATERIAL IN LIEU OF THE OLD IS OBJECTIONABLE UNDER THE RULE THAT PUBLIC FUNDS ARE NOT AVAILABLE GENERALLY FOR IMPROVING PRIVATE PROPERTY. RULE APPLICABLE TO PROJECTS IN THE WESTERN RANGE OR OTHER LOCALITIES WHERE APPLICABLE LAWS REQUIRE THE ROAD BUILDING AGENCY TO ERECT A FENCE WITHIN THE RIGHT-OF-WAY AND TO MAINTAIN IT AS A PUBLIC FUNCTION, DISTINGUISHED. WHERE A DECISION AS TO THE EXPENDITURE OF APPROPRIATED FUNDS UNDER A PROPOSED REGULATION IS DESIRED, IT IS PREFERABLE THAT A DRAFT OF THE REGULATION AS PROPOSED BE SUBMITTED RATHER THAN SUBMITTING ONLY THE LEGAL QUESTION INVOLVED.

COMPTROLLER GENERAL BROWN TO THE FEDERAL WORKS ADMINISTRATOR, NOVEMBER 28, 1939:

I HAVE YOUR LETTER OF NOVEMBER 3, 1939, AS FOLLOWS:

ENCLOSED ARE COPIES OF REGULATIONS ISSUED BY THE WORK PROJECTS ADMINISTRATION (SECTION 26, OPERATING PROCEDURE NO. G-1) AND THE PUBLIC ROADS ADMINISTRATION ( GENERAL ADMINISTRATIVE MEMORANDA NOS. 35 AND 58), CONCERNING REMOVAL AND CONSTRUCTION OF FENCES WITHIN THE RIGHT-OF-WAY ON PROJECTS INVOLVING THE CONSTRUCTION OF HIGHWAYS PROSECUTED BY THESE ADMINISTRATIONS.

IN MANY INSTANCES FENCES HAVE BEEN CONSTRUCTED BY PRIVATE INDIVIDUALS OWNING PROPERTY ABUTTING A PUBLIC HIGHWAY AND, WHERE THE CONSTRUCTION WORK REQUIRES THE WIDENING OF THE HIGHWAY, IT HAS BEEN A COMMON PRACTICE IN SOME LOCALITIES FOR PUBLIC AGENCIES TO REMOVE AND RESET THE FENCES. THE REGULATIONS ENCLOSED DO NOT SPECIFICALLY AUTHORIZE THIS WORK UNLESS LOCAL LAWS REQUIRE THE PUBLIC AGENCY TO PROTECT THE PUBLIC USING THE HIGHWAY BY THE ERECTION OF FENCES. HOWEVER, IN VIEW OF DECISIONS RENDERED BY THE FORMER COMPTROLLER GENERAL (A-65186, OCTOBER 19, 1935; A-70966, APRIL 20, 1936; A-80957, OCTOBER 27, 1936), A QUESTION NOW ARISES AS TO WHETHER THE WORK PROJECTS ADMINISTRATION AND THE RESETTING OF FENCES AS AN INCIDENTAL PART OF THE REMOVAL OF SUCH FENCES FROM THE PUBLIC HIGHWAY, WHERE THE ABUTTING OWNERS RECEIVE NO ADDITIONAL BENEFITS AS A RESULT OF SUCH WORK, AND WHERE THE FENCES WILL REMAIN WITHIN THE HIGHWAY RIGHT-OF WAY. YOUR DECISION IN THE MATTER IS REQUESTED.

WHERE A DECISION AS TO THE EXPENDITURE OF APPROPRIATED FUNDS UNDER A PROPOSED REGULATION IS DESIRED, IT IS PREFERABLE FOR A DRAFT OF THE REGULATION AS PROPOSED TO BE SUBMITTED WITH THE REQUEST FOR DECISION. HOWEVER, IN THE PRESENT MATTER, SINCE IT APPEARS THE FENCES WILL BE FOUND WITHIN THE RIGHT-OF-WAY AS WIDENED FOR THE PROJECTED IMPROVEMENT, WHICH WILL REQUIRE THEM TO BE MOVED AS A FUNCTION NECESSARILY INCIDENT TO CLEARING THE NEW ROADWAY; FURTHER, SINCE THEIR RESETTING, PRESUMABLY ON OR NEAR THE BOUNDARY LINES AS ADJUSTED CLEARLY WILL RESULT IN A BENEFIT TO THE PUBLIC IN ITS USE OF THE ROAD, WITH NO SUBSTANTIAL BETTERMENT ESPECIALLY BENEFITING THE ABUTTING LANDOWNERS; AND UPON THE UNDERSTANDING THAT THE FURNISHING BY THE GOVERNMENT OF NEW REPLACEMENT MATERIAL (AS DISTINGUISHED FROM LABOR TO REERECT THE FENCE) IS NOT CONTEMPLATED, THERE IS PERCEIVED NO LEGAL OBJECTION TO THE USE OF PROJECT LABOR, PAID FOR WITH FEDERAL FUNDS, IN SUCH WORK. IT WILL BE OBSERVED THAT THIS WOULD APPEAR TO REQUIRE SOME REVISION OF BUREAU OF PUBLIC ROADS GENERAL ADMINISTRATIVE MEMORANDUM NO. 58, DATED AUGUST 12, 1938, PARAGRAPH (3) OF WHICH NOW READS:

IN THE CASE OF FARM FENCES ALONG HIGHWAYS WHERE ADJUSTMENTS OF THE HIGHWAY IMPROVEMENT ARE NECESSARY FOR WIDENING OF THE HIGHWAY OR FOR CHANGING ITS GRADE OR ALIGNMENT, ADJUSTMENTS OF EXISTING FENCES MADE NECESSARY THEREBY WILL BE ELIGIBLE FOR FEDERAL PARTICIPATION. THIS MAY INCLUDE THE FURNISHING AND SETTING OF NEW POSTS IN LIEU OF SUCH OLD POSTS AS MAY BE FOUND UNFIT FOR REUSE AS THE RESULT OF HAVING TO BE MOVED. THE FURNISHING OF NEW POSTS IN LIEU OF OLD APPEARS OBJECTIONABLE UNDER THE RULE THAT PUBLIC FUNDS ARE NOT AVAILABLE GENERALLY FOR THE PURPOSE OF IMPROVING THE PROPERTY OF PRIVATE INDIVIDUALS.

IT IS TO BE UNDERSTOOD THAT THE LIMITATIONS SUGGESTED WILL NOT ORDINARILY APPLY IN THE WESTERN RANGE OR OTHER LOCALITIES WHERE THE APPLICABLE LAWS REQUIRE THE ROAD BUILDING AGENCY TO ERECT A FENCE WITHIN THE RIGHT-OF-WAY AND TO MAINTAIN IT AS A PUBLIC FUNCTION, THE FENCES WHICH MAY BE BUILT THEREIN WITH THE AID OF FEDERAL FUNDS TO BE CONSIDERED A PART OF THE ACTUAL HIGHWAY CONSTRUCTION.