B-157405 August 30, 1965

B-157405 August 30, 1965

The Honorable Stuart Symington United States Senate

Dear Senator Symington:

Reference is made to your interest in the claim of Mrs. Hattie P. Downing, Higginsville, Missouri, for damages of $1,755 resulting from Government use of land under right of entry contracts in connection with proposed construction of a missile site.

A Government contractor, Morrison-Hardmen-Perini-Leavell Joint Enterprise, entered on the 2.58 acres of Mrs. Downing's land on August 9, 1962, for work in connection with the construction of the Whiteman Air Force Base Minuteman Site N-6. The entry was made under rights of entry dated May 8, 1961, November 13, 1961, and April 5, 1963, in which the Government agreed to make reasonable restoration of the temporary work area and to be responsible for loss or damage to growing crops and to improvements on the land.

Mrs. Downing's claim for $1,755 is for loss of crops, loss of winter pasturage, loss of land value and pond damage. She is claiming loss of fescur seed and hay crops in the amount of $519, loss of pasturage in the amount of $200, damage to a pond located on the land in the amount of $280, and the value of the alleged now worthless land at the rate of $300 per acre in the amount of $774. The total amount of these losses is $1,773 although the claim is for $1755 only.

The U.S. Army Crops of Engineers' District Engineer in Kansas City, Missouri, investigated the area on February 4, 1964, the date the property was returned to Mrs. Downing. It is reported that he found grass and trees growing on the land and concluded that it was not valueless as claimed and restoration costs were estimated at $260.75. Pasturage cost was computed at a rental cost for the period in the amount of $38.70. Further, the District Engineer found no pond damage, so he did not include that in his appraisal. As to crop loss, since photographs furnished by Mrs. Downing's nephew, Mr. Ralph Cabbell, show that the 1962 seed crop had been harvested, nothing was allowed. Although the District Engineer allowed a higher cost per pound for seed and hay crops, he also considered harvesting and marketing expenses and computed the loss at $387.56. The total thus arrived at is $687.01, which was "adjusted" to $685.

Mrs. Downing refused to accept $685 and in an effort to settle the matter the District Engineer offered $1,000, which also was refused. Mrs. Downing, however, has indicated that she might accept $1,475 in settlement.

In matters of this type, our Office, not having the technical personnel to conduct similar investigations, relies upon the determinations of the administrative agency involved unless there is a clear showing that such administrative report is in error. 14 Comp. Gen. 927.

Accordingly, in view of the damage appraisal of $685 made by the local U.S. Army District Engineer, instructions are being issued today for allowance of that amount in full and final settlement of the claim.

Sincerely yours,

Frank H. Weitzel Acting Comptroller General of the United States