B-76580, FEB. 12, 1960

B-76580: Feb 12, 1960

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MACY LAND CORPORATION: REFERENCE IS MADE TO A LETTER DATED DECEMBER 8. IT WAS CONTENDED. THAT THEREBY YOU WERE SUBJECTED TO CERTAIN LOSSES. WAS DISALLOWED FOR THE REASON THAT THIS TRACT WAS INVOLVED IN AN ACTION FILED IN THE COURT OF CLAIMS. IT WAS POINTED OUT IN THE SETTLEMENT THAT YOU OR YOUR PREDECESSORS IN TITLE WERE FULLY AWARE OF THE EXTENT AND SEVERITY OF THE CONTAMINATION AT THE TIME THE LEASES WERE TERMINATED IN 1946 AND THAT. 057 ACRES COULD HAVE BEEN LITIGATED IN THE COURT OF CLAIMS ACTION. ON THE BASIS OF THE RECORD IT WAS CONCLUDED THAT THE CLAIM WAS RES JUDICATA AS TO SUCH TRACT. IN THE SETTLEMENT THERE WERE SET FORTH ADDITIONAL REASONS FOR THE DISALLOWANCE OF YOUR CLAIM. AMONG THEM BEING THE FACT THAT GENERAL RELEASES WERE SIGNED BY THE LESSORS.

B-76580, FEB. 12, 1960

TO ROCKY RIVER COMPANY, INC., AND MACY LAND CORPORATION:

REFERENCE IS MADE TO A LETTER DATED DECEMBER 8, 1959, WITH ENCLOSURES, FROM YOUR ATTORNEY, LEWIS S. POPE, ESQUIRE, REQUESTING RECONSIDERATION OF SETTLEMENT DATED AUGUST 10, 1959, BY WHICH OUR CLAIMS DIVISION DISALLOWED YOUR CLAIM FOR SUMS AGGREGATING $181,082.21, REPRESENTING DAMAGES TO CERTAIN LAND LEASED BY THE UNITED STATES, DESIGNATED AS THE SPENCER ARTILLERY RANGE AND USED AS SUCH BY THE U.S. ARMY GROUND FORCES. ALSO, THERE HAS BEEN RECEIVED MR. POPE'S LETTER OF DECEMBER 24, 1959, RELATING TO THE MATTER OF YOUR CLAIM.

IN THE CLAIM FILED BY YOU WITH THE DEPARTMENT OF THE ARMY AND SUBSEQUENTLY FORWARDED TO OUR CLAIMS DIVISION FOR SETTLEMENT, IT WAS CONTENDED, AMONG OTHER THINGS, THAT THE GOVERNMENT'S USE OF THE LAND FOR ARTILLERY PURPOSES LEFT IT IMPREGNATED WITH UNEXPLODED SHELLS CREATING A CONDITION TOO HAZARDOUS FOR COAL MINING OPERATIONS, AND THAT THEREBY YOU WERE SUBJECTED TO CERTAIN LOSSES. IN THE SETTLEMENT OF AUGUST 10, 1959, YOUR CLAIM WITH RESPECT TO 2,057 ACRES OF THE TOTAL OF 3,059 ACRES DECLARED UNSAFE EXCEPT FOR SURFACE USE, WAS DISALLOWED FOR THE REASON THAT THIS TRACT WAS INVOLVED IN AN ACTION FILED IN THE COURT OF CLAIMS. IT WAS POINTED OUT IN THE SETTLEMENT THAT YOU OR YOUR PREDECESSORS IN TITLE WERE FULLY AWARE OF THE EXTENT AND SEVERITY OF THE CONTAMINATION AT THE TIME THE LEASES WERE TERMINATED IN 1946 AND THAT, THEREFORE, YOUR CLAIM WITH RESPECT TO THE 2,057 ACRES COULD HAVE BEEN LITIGATED IN THE COURT OF CLAIMS ACTION. ON THE BASIS OF THE RECORD IT WAS CONCLUDED THAT THE CLAIM WAS RES JUDICATA AS TO SUCH TRACT.

IN THE SETTLEMENT THERE WERE SET FORTH ADDITIONAL REASONS FOR THE DISALLOWANCE OF YOUR CLAIM, AMONG THEM BEING THE FACT THAT GENERAL RELEASES WERE SIGNED BY THE LESSORS; ALSO, THAT THE STIPULATION UPON WHICH THE COURT OF CLAIMS BASED ITS AWARD IN THE AMOUNT OF $13,000 CONTAINED A GENERAL RELEASE. NONE OF THE RELEASES RESERVED ANY RIGHT WITH RESPECT TO THE INSTANT CLAIM. UPON CONSIDERATION OF ALL THE FACTS AND CIRCUMSTANCES, OUR CLAIMS DIVISION CONCLUDED THAT YOUR CLAIMS ARE TOO DOUBTFUL TO WARRANT PAYMENT OF ANY PART THEREOF, THERE BEING CITED IN SUPPORT OF SUCH ACTION THE CASES OF LONGWILL V. UNITED STATES, 17 C.CLS. 288, AND CHARLES V. UNITED STATES, 19 C.CLS. 316, WHEREIN IT WAS HELD THAT THE GOVERNMENT ACCOUNTING OFFICERS SHALL REJECT OR DISALLOW CLAIMS OR ACCOUNTS AS TO WHICH THERE MAY BE SUBSTANTIAL DEFENSES IN LAW, OR AS TO THE VALIDITY OF WHICH THEY MAY BE IN DOUBT.

IN SUPPORT OF YOUR REQUEST FOR RECONSIDERATION OF YOUR CLAIM, THERE WAS SUBMITTED AN EXTENSIVE BRIEF SETTING FORTH YOUR CONTENTIONS RESPECTING THE MERITS OF YOUR CLAIM. CONSIDERATION HAS BEEN GIVEN TO THE MATTERS COVERED BY THE BRIEF, HOWEVER, IT SEEMS ONLY NECESSARY TO REFER TO WHAT WE CONSIDER TO BE THE DECISIVE FACTORS IN THIS CASE. RESPECTING THE APPLICATION OF THE DOCTRINE OF RES JUDICATA IT IS CONTENDED THAT NO CONSIDERATION WAS EVER GIVEN, OR INTENDED TO BE GIVEN IN THE COURT OF CLAIMS CASE, TO THE DAMAGE TO THE LAND ARISING OUT OF THE PRESENCE OF LIVE SHELLS. THE DECISIVE FACTOR IN THE APPLICATION OF THE DOCTRINE OF RES JUDICATA IS NOT WHETHER THE PARTY INSTITUTING AN ACTION INTENDED TO LIMIT THE LITIGATION TO CERTAIN ISSUES. IN THE CASE OF HEISER V. WOODRUFF, ET AL., 327 U.S. 726, 735, THE COURT SAID:

"IN GENERAL A JUDGMENT IS RES JUDICATA NOT ONLY AS TO ALL MATTERS LITIGATED AND DECIDED BY IT, BUT AS TO ALL RELEVANT ISSUES WHICH COULD HAVE BEEN BUT WERE NOT RAISED AND LITIGATED IN THE SUIT. * * *"

THE DEPARTMENT OF THE ARMY TOOK THE POSITION--- WITH WHICH WE AGREE- - THAT NEITHER THE FILING OF THE CERTIFICATE OF CLEARANCE IN 1953, NOR THE DELIVERY OF SUCH A CERTIFICATE IN 1956 CONSTITUTED A TAKING OF YOUR LAND; THAT THE EFFECT, IF ANY, OF THESE DOCUMENTS WAS TO REFLECT A PRIOR HAPPENING OR CIRCUMSTANCE AND TO SERVE AS NOTICE THAT ENTERING UPON THESE LANDS WAS AT ONE'S OWN RISK FOR WHICH THE GOVERNMENT ASSUMED NO LIABILITY OR RESPONSIBILITY FOR ANY INJURY OR HARM THEREON. IT APPEARS THAT THE ACTUAL APPROPRIATION OF A REAL ESTATE INTEREST HAD TAKEN PLACE PREVIOUSLY, AND THAT THE INJURY WAS IN EXISTENCE AT THE TIME THE LAND WAS RETURNED TO THE OWNERS.

THE CLAIM OF THE ROCKY RIVER COMPANY, INC., DATED AUGUST 14, 1946, COVERING DAMAGES TO THE PROPERTY COVERED BY LEASE NO. W-54-QM-1941, DATED DECEMBER 21, 1940, WHICH LEASE WAS TERMINATED AND SURRENDERED BY THE GOVERNMENT ON OR ABOUT AUGUST 13, 1946, CONTAINED THE FOLLOWING TATEMENTS:

"PRIOR TO THE TERMINATION OF SAID LEASE, THE LESSEE ATTEMPTED TO CLEAR THE LEASED TERRITORY OF UNEXPLODED SHELLS AND BOMBS, EVIDENTLY REALIZING THAT UNEXPLODED SHELLS AND BOMBS ON THE PROPERTY WOULD DESTROY ITS VALUE, AS ITS USE AND OCCUPATION WOULD BE HAZARDOUS.

"IT NOW APPEARS THAT SAID ATTEMPTS FAILED AND THAT UNEXPLODED SHELLS (SIC) AND BOMBS WERE LEFT PROMISCUOUSLY OVER SAID LEASED PROPERTY AND ARE STILL TO BE FOUND SCATTERED HERE AND THERE OVER SAID PROPERTY, SOME OF WHICH ARE PARTLY OR ENTIRELY BURIED IN THE GROUND, SOME COVERED BY GRASS AND SOME BOLDLY EXPOSED TO VIEW.

"THESE UNEXPLODED SHELLS AND BOMBS CREATE A SERIOUS MENACE TO THE USE AND OCCUPATION OF SAID PREMISES AND INCITE A FEAR THAT DESTROYS (SIC) THE MARKET VALUE OF SAID PROPERTY.'

IT THUS APPEARS THAT PRIOR TO THE FILING OF THE PETITION IN THE COURT OF CLAIMS UNDER DATE OF MAY 3, 1958, YOU WERE ADVISED GENERALLY AS TO THE SEVERITY OF THE CONTAMINATION IN THIS CASE. WHILE IT APPEARS TO BE TRUE THAT THE EXTENT OF THE DAMAGES WAS NOT DETERMINABLE WHEN THE ACTION WAS FILED IN THE COURT OF CLAIMS, IT DOES APPEAR THAT THERE COULD HAVE BEEN INCLUDED IN THE PETITION A CLAIM FOR AN INDEFINITE AMOUNT, SUBJECT TO AMENDMENT WHEN THE FULL AMOUNT OF THE DAMAGE HAD BEEN ASCERTAINED. UNDER THE HOLDING OF THE SUPREME COURT IN THE CITED CASE OF HEISER V. WOODRUFF, ET AL., IT IS CLEAR THAT THE DOCTRINE OF RES JUDICATA IS DESIGNED TO PREVENT THE RELITIGATION OF ANY MATTER WHICH COULD OR SHOULD HAVE BEEN LITIGATED IN THE FIRST INSTANCE. IN ANY EVENT, THERE ARISES SUCH DOUBT AS TO THE VALIDITY OF YOUR CLAIM AS TO JUSTIFY DENIAL THEREOF UNDER THE HOLDINGS IN THE CITED LONGWILL AND CHARLES CASES.

THERE REMAINS FOR CONSIDERATION THE EFFECT OF THE RELEASES EXECUTED BY THE LESSORS. IN EXECUTING THE SUPPLEMENTAL AGREEMENTS, ACCEPTING CASH SETTLEMENTS AND/OR IMPROVEMENTS IN SATISFACTION OF THE DAMAGES CLAIMED TO THE TIMBER, THE LESSORS SIGNED A RELEASE READING AS OLLOWS:

"THAT THE LESSOR HEREBY REMISES, RELEASES, AND FOREVER DISCHARGES THE GOVERNMENT, ITS OFFICERS, AGENTS, AND EMPLOYEES OF AND FROM ANY AND ALL MANNER OF ACTIONS, LIABILITY AND CLAIMS (EXCEPT ANY UNPAID RENT FOR THE PERIOD ENDING -----) AGAINST THE GOVERNMENT, ITS OFFICERS AND AGENTS, WHICH THE LESSOR NOW HAS OR EVER WILL HAVE FOR THE RESTORATION OF SAID PREMISES, OR BY REASON OF ANY OTHER MATTER, CAUSE OR THING WHATSOEVER, PARTICULARLY ARISING OUT OF SAID LEASE, AND THE OCCUPATION BY THE GOVERNMENT OF THE AFORESAID PREMISES.'

THE STIPULATION FOR SETTLEMENT DATED JULY 13, 1949, UPON WHICH THE JUDGMENT OF THE COURT OF CLAIMS WAS BASED, CONTAINED THE FOLLOWING PARAGRAPH:

"6. IT IS STIPULATED AND AGREED THAT THE SUM OF $13,000 IS INTENDED TO AND DOES COVER ALL DAMAGES AND CLAIMS OF EVERY KIND AND CHARACTER WHICH THE PLAINTIFF MAY HAVE SUSTAINED OR TO WHICH IT MAY BE ENTITLED AS A RESULT OF ANY AND ALL THINGS MENTIONED AND SET OUT IN THE PETITION, OR AS A RESULT OF THE OPERATION BY THE UNITED STATES OF THE ARTILLERY RANGE ON THE PLAINTIFF'S LAND, OR IN ANY WISE ACCRUING BY REASON OF ANY ALLEGED WASTE BY THE UNITED STATES OF THE TIMBER, IMPROVEMENTS, BUILDINGS, MINING EQUIPMENT AND THE LAND OF THE PLAINTIFF.'

THE QUESTION ARISES AS TO WHETHER YOU--- THE ROCKY RIVER COMPANY, INC.--- WERE UNDER ANY MISAPPREHENSION AS TO THE FACTS OF THE DAMAGE WHEN THE STIPULATION WAS ENTERED INTO. THE CONTRARY APPEARS TO BE TRUE IN THAT IN THE CLAIM FILED BY THE ROCKY RIVER COMPANY UNDER DATE OF AUGUST 14, 1946, THERE WAS AN ATTEMPT TO RESERVE THE RIGHT TO FILE A CLAIM FOR DAMAGES BY REASON OF CONTAMINATION, IN THE FOLLOWING LANGUAGE:

"IN VIEW OF THE PRESENT EFFORTS OF THE GOVERNMENT TO CLEAR THE PREMISES OF SAID UNEXPLODED SHELLS AND BOMBS, SAID ROCKY RIVER COMPANY, INC., DOES NOT, AT THIS TIME, FILE ANY SPECIFIC CLAIM FOR DAMAGES ON THIS ACCOUNT, TRUSTING SAID AREA WILL BE CLEARED OF SAME. HOWEVER, IT RESERVES THE RIGHT TO FILE SUCH CLAIM, PROVIDED THE PREMISES ARE NOT CLEARED OF SUCH SHELLS AND BOMBS WITHIN A REASONABLE TIME, WHICH CLAIM WOULD BE THE MARKET VALUE OF THE PROPERTY.'

AS TO THE EFFECT, GENERALLY OF A RELEASE, SEE THE CASES OF EDWARD B. EPPES V. UNITED STATES, 62 C.CLS. 645; P. DE RONDE COMPANY V. UNITED STATES, 63 C.CLS. 665, CERTIORARI DENIED, 276 U.S. 620; AND PENN FOUNDRY AND MANUFACTURING COMPANY, INC. V. UNITED STATES, 110 C.CLS. 374. WE DO NOT, OF COURSE, EXPRESS ANY OPINION AS TO WHAT A COURT MIGHT HOLD RESPECTING THE LEGAL EFFECT OF THE RELEASES EXECUTED IN THIS CASE. NEITHER, UNDER THE CIRCUMSTANCES, DOES IT APPEAR THAT WE ARE REQUIRED TO MAKE ANY DETERMINATION IN THAT RESPECT. IT SEEMS ONLY NECESSARY TO HOLD THAT THE EXECUTION OF THE RELEASES GIVES RISE TO SUCH DOUBTS AS TO THE VALIDITY OF YOUR CLAIMS AS TO REQUIRE APPLICATION OF THE RULE STATED IN THE CITED LONGWILL AND CHARLES CASES, THAT IS TO SAY, WHERE THERE IS SUBSTANTIAL DOUBT AS TO THE VALIDITY OF ANY CLAIM IT IS THE DUTY OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT TO REJECT IT.

UPON CONSIDERATION OF ALL THE FACTS AND CIRCUMSTANCES IN THIS CASE, WE CONCLUDE THAT THE ACTION TAKEN IN THE SETTLEMENT OF AUGUST 10, 1959, WAS CORRECT AND THE SAME IS SUSTAINED.