B-157405-O.M. August 30, 1965
Highlights
PA-Z-2295860-CJW-1 The Comptroller General Herewith is the claim of Hattie P. The record discloses that the first right-of-entry permit was executed on May 8. No damage to the pond is indicated. No amount is approved for this item. An attempt was made by the Corps of Engineers to settle the claim for $685.00. This offer was refused and a subsequent offer of $1. 000.00 in settlement was likewise refused. Prior permit modifications containing releases were executed on August 1. Which was the subject of B-145109. Since acceptance of the previous offers of settlement made by the Corps of Engineers have been refused. The matter is submitted for your consideration and instructions. No contractor liability is indicated.
B-157405-O.M. August 30, 1965
PA-Z-2295860-CJW-1
The Comptroller General
Herewith is the claim of Hattie P. Downing, owner, and Ralph Cabbell, tenant for $1,755.00, to cover crop and land damage believed due, resulting from activities of a Government contractor during the period from August 9, 1962, to February 4, 1964, on 2.58 acres of land, under right-of-entry permits granted the Government.
The record discloses that the first right-of-entry permit was executed on May 8, 1961, followed by subsequent permits executed on November 13, 1961, and April 5, 1963, copies in file.
The "Findings" accompanying the Report of Claims Officer, DA Form 1208, indicated that the Government contractor entered upon the land and used it as a temporary work area and, in the process, spoiled rock and clay on the surface of the land.
A survey conducted by the Corps of Engineers computes the damage as being $685.00, arrived at as follows: for 1962 crop damage, $189.63; for 1963 crop damage, $236.33; total crop damage $426.26; for damage to land, $260.75; total damages $687.01, "adjusted" to $685.00. The correct figure for 1962 crop damage appears to be $189.93. See paragraph 11B of "Reasons for Recommendations" of Report of Claims Officer dated June 21, 1965, relative to substitution of the $141.13 seed crop loss for 1964, for the 1962 loss. No damage to the pond is indicated. Accordingly, no amount is approved for this item. An attempt was made by the Corps of Engineers to settle the claim for $685.00, but this offer was refused and a subsequent offer of $1,000.00 in settlement was likewise refused.
Paragraph 5 of the right-of-entry permits contains an indemnity provision to cover damage caused by the Government or its contractor. Prior permit modifications containing releases were executed on August 1, 1961, and January 7, 1963, to allow payments in the respective sums of $129.00 and $30.00, for other damage not included in the present claim. See Exhibits G and H.
The Government would appear to be liable for reasonable damage under the right-of-entry permits. See similar clam Z-2277594, Melvin J. Beck, which was the subject of B-145109, December 29, 1964. However, since acceptance of the previous offers of settlement made by the Corps of Engineers have been refused, the matter is submitted for your consideration and instructions. No contractor liability is indicated. The interest of Mr. Cabbel, who is described only as a "tenant" appears to be mostly anticipatory in nature, except for some possible interest in the crop damage.
Senator Stuart Symington and Representative Wm. J. Randall are interested in this claim.
Chief, Payment Claims Branch
Enclosures Z-2277594
Endorsement
Director, Claims Division:
Returned. The claim should be allowed in the amount of $685, in full and final settlement of all damages arising under the right of entry permits granted the Government.
There are attached hereto copies of our letters of today to Senator Stuart Symington and Representative William J. Randall.
Frank H. Weitzel Acting Comptroller General of the United States
Attachments