B-153707, FEB. 21, 1966

B-153707: Feb 21, 1966

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YOU STATED THAT THE $120 OFFERED IS NOT ACCEPTABLE AND REPEATED A CLAIM FOR $670. THE $120 SUM WAS CERTIFIED FOR PAYMENT TO YOU BY THIS OFFICE ON AUGUST 19. AS IS EVIDENCED BY YOUR LETTER YOU RECEIVED A COPY OF OUR CERTIFICATION. SUCH CERTIFICATE WAS MADE BY OUR OFFICE AFTER A REVIEW OF THE RECORD OF YOUR CLAIM AND YOUR LETTER OF SEPTEMBER 13. WILL BE TREATED AS AN APPEAL TO THAT CERTIFICATION. THESE ITEMS WERE DENIED BECAUSE YOU DID NOT SUBMIT ANY EVIDENCE OF LOSS OF SOIL OR HOG PASTURE. " IT IS REPORTED THAT YOU ARE CLAIMING LOSS OF BRUSH AT THE CREEK BANK WHICH APPEARS AS BEING ON THE ADJOINING LAND TO THE SOUTH FROM YOUR PROPERTY. SUCH LOSS WAS NOT FOUND UPON INVESTIGATION AND PHOTOGRAPHS SUBMITTED OF THIS AREA DO NOT PROVE ANY SUCH LOSS.

B-153707, FEB. 21, 1966

TO MR. R. C. KANENBLEY:

YOUR LETTER OF SEPTEMBER 13, 1965, TO THE CORPS OF ENGINEERS, KANSAS CITY, MISSOURI, BY WHICH YOU REFUSED ACCEPTANCE OF $120 TENDERED IN PAYMENT FOR DAMAGES DONE TO YOUR PROPERTY INCIDENT TO THE INSTALLATION BY A GOVERNMENT CONTRACTOR OF A COMMUNICATION CABLE, HAS BEEN FORWARDED TO THIS OFFICE. YOU STATED THAT THE $120 OFFERED IS NOT ACCEPTABLE AND REPEATED A CLAIM FOR $670.

THE $120 SUM WAS CERTIFIED FOR PAYMENT TO YOU BY THIS OFFICE ON AUGUST 19, 1965. AS IS EVIDENCED BY YOUR LETTER YOU RECEIVED A COPY OF OUR CERTIFICATION. SUCH CERTIFICATE WAS MADE BY OUR OFFICE AFTER A REVIEW OF THE RECORD OF YOUR CLAIM AND YOUR LETTER OF SEPTEMBER 13, 1965, WILL BE TREATED AS AN APPEAL TO THAT CERTIFICATION.

THERE FOLLOWS A TABULATION OF THE AMOUNTS CLAIMED BY YOU AND THE AMOUNTS ALLOWED.

TABLE

AMOUNT AMOUNT CERTIFIED AMOUNT

ITEM CLAIMED FOR PAYMENT DISALLOWED ROCK AND BRUSH DAMAGE

$100.00 $ 60.00 $ 40.00 FENCE DAMAGE 10.00 10.00

.00 GATE DAMAGE 10.00 25.00 CULVERT DAMAGE 50.00 25.00 25.00 BRUSH AT CREEK AND SOIL LOSS 400.00 .00 400.00 LOSS OF HOG PASTURE 100.00 .00 100.00

$670.00 $120.00 $565.00

AS INDICATED ABOVE, THE BULK OF THE AMOUNT DENIED, TOTALING $500, REPRESENTS "BRUSH AT CREEK AND SOIL LOSS" AND "LOSS OF HOG PASTURE.'

THESE ITEMS WERE DENIED BECAUSE YOU DID NOT SUBMIT ANY EVIDENCE OF LOSS OF SOIL OR HOG PASTURE. IN ADDITION, THE FACTS AS REPORTED HERE FORM FURTHER BASIS FOR DENYING YOUR CLAIM FOR THESE ITEMS.

SPECIFICALLY, WITH REGARD TO THE ITEM "BRUSH AT CREEK AND SOIL LOSS," IT IS REPORTED THAT YOU ARE CLAIMING LOSS OF BRUSH AT THE CREEK BANK WHICH APPEARS AS BEING ON THE ADJOINING LAND TO THE SOUTH FROM YOUR PROPERTY. WITH REGARD TO THE SOIL LOSS CLAIMED, SUCH LOSS WAS NOT FOUND UPON INVESTIGATION AND PHOTOGRAPHS SUBMITTED OF THIS AREA DO NOT PROVE ANY SUCH LOSS.

WITH REGARD TO THE LOSS OF HOG PASTURE, IT IS REPORTED THAT THE AREA INVOLVED WAS BEING GRAZED BY LIVESTOCK WHEN THE CABLE LINE WAS APPRAISED AND THAT APPARENTLY THE HOG PASTURE WAS USED ALMOST CONTINUOUSLY FROM THE TIME OF INSTALLATION OF THE CABLE IN AUGUST 1963, TO THE DATE OF APPRAISAL ON OCTOBER 30, 1963. MOREOVER, THE CORPS OF ENGINEERS ADVISED THAT THERE IS NO LIABILITY UNDER THE RIGHT OF-ENTRY AGREEMENT FOR THE LOSS OF HOG PASTURE, THIS BEING CONSEQUENTIAL IN NATURE AND NOT A DIRECT DAMAGE TO LAND AND IMPROVEMENTS.

THE OTHER ADJUSTMENTS IN YOUR CLAIM WERE,"ROCK AND BRUSH DAMAGE" FROM $100 CLAIMED TO $60,"GATE DAMAGE" FROM $10 CLAIMED TO $25 AND "CULVERT DAMAGE" FROM $50 CLAIMED TO $25. THESE ADJUSTMENTS WERE MADE BY THE APPRAISER WHO INVESTIGATED YOUR CLAIM AND WE HAVE NO BASIS FOR QUESTIONING HIS EVALUATIONS. IN ORDER FOR YOU TO UNDERSTAND THE FUNCTION OF OUR OFFICE IN THIS MATTER IT SHOULD BE POINTED OUT THAT WE MUST RELY UPON THE WRITTEN RECORD SUBMITTED, AND, ABSENT CLEAR MISTAKE ON THE PART OF THE ADMINISTRATIVE OFFICE--- IN THIS CASE THE CORPS OF ENGINEERS--- WE ACCEPT THE FACTS AS ADMINISTRATIVELY REPORTED AS ACCURATE.

A COMPLETE REVIEW OF THE ENTIRE RECORD HAS BEEN MADE AND WE FIND NO REASON TO INCREASE THE $120 SUM AWARDED TO YOU. THEREFORE, ON APPEAL, YOUR CLAIM FOR ADDITIONAL PAYMENT IS DENIED. A COPY OF THIS DECISION WILL BE FURNISHED TO THE CORPS OF ENGINEERS.

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