B-125863, DEC. 15, 1955

B-125863, DEC. 15, 1955

TO MR. PETER J. STANDARD:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 26, 1955, REQUESTING REVIEW OF SETTLEMENT OF AUGUST 26, 1955, WHICH DISALLOWED YOUR CLAIM FOR $3,800, REPRESENTING THE ALLEGED VALUE OF YOUR IMPROVEMENTS AND PERSONAL PROPERTY SITUATED THEREIN WHICH WERE DESTROYED AS A RESULT OF A FIRE WHILE THE LAND ON WHICH THE BUILDINGS WERE SITUATED WAS LEASED TO THE GOVERNMENT UNDER CONTRACT NO. NOY/R/-44135 DATED SEPTEMBER 1, 1943.

UNDER THE CITED LEASE YOU LET THE REAL PROPERTY THEREIN DESCRIBED TO THE UNITED STATES FOR MILITARY PURPOSES FOR THE TERM BEGINNING SEPTEMBER 1, 1943, AND ENDING JUNE 30, 1949, WITH PROVISION FOR AUTOMATIC RENEWAL NOT TO EXTEND THE OCCUPANCY BEYOND JUNE 30, 1953. BY PARAGRAPH 4 OF THE LEASE THE GOVERNMENT AGREED, IF REQUIRED BY YOU, TO REPAIR ANY DAMAGE TO THE PREMISES OCCASIONED BY AND DURING THE USE OF THE PREMISES BY THE GOVERNMENT, ORDINARY WEAR AND TEAR AND DAMAGE BY THE ELEMENTS OR DAMAGE OVER WHICH THE GOVERNMENT HAS NO CONTROL EXCEPTED, THE GOVERNMENT TO HAVE THE OPTION OF COMPENSATING YOU FOR SUCH DAMAGE IN LIEU OF ACTUAL PHYSICAL RESTORATION.

UPON RECEIPT OF YOUR ORIGINAL CLAIM FOR $4,258 AN INSPECTION PARTY PROCEEDED ON MARCH 10, 1949, TO MOJAVE GUNNERY RANGE, PARCEL M-19, FOR THE PURPOSE OF INSPECTING THE AREA TO DETERMINE, IF POSSIBLE, THE APPROXIMATE DATE OF THE FIRE, THE PROBABLE CAUSE, AND TO ESTIMATE THE LOSS RESULTING FROM THE DESTRUCTION OF THE BUILDINGS AND PERSONAL PROPERTY. WHILE THE APPROXIMATE DATE OF THE FIRE WAS DETERMINED TO HAVE BEEN BETWEEN TWO AND THREE MONTHS PRIOR TO THE DATE OF THAT INSPECTION, THE PROBABLE CAUSE OF THE FIRE WAS NOT DEFINITELY DETERMINED.

IN THE SUBMISSION OF YOUR ORIGINAL CLAIM YOU FAILED TO SUBMIT ANY EVIDENCE TENDING TO SHOW THE GOVERNMENT'S LIABILITY FOR THE LOSSES ALLEGED TO HAVE BEEN SUSTAINED. IN YOUR REQUEST FOR REVIEW YOU STATE THAT, FROM YOUR EXAMINATION OF THE REMAINS OF THE CAMPSITE, IT IS YOUR CONCLUSION THAT THE DESTRUCTION WAS THE RESULT OF A FIRE BOMB DROPPED BY A NAVAL AIRCRAFT. HOWEVER, THE ADMINISTRATIVE OFFICE HAS REPORTED THAT DURING THE INVESTIGATION OF THE MATTER A CAREFUL EXAMINATION WAS MADE IN BURNED DEBRIS AND IN THE SURROUNDING AREA FOR INDICATIONS OF ANY AIRCRAFT FIRING THAT MIGHT HAVE CAUSED THE FIRE, BUT NO EVIDENCE OF ANY FIRING WAS FOUND. IT WOULD APPEAR REASONABLE TO ASSUME THAT IF THE BUILDINGS WERE DESTROYED BY A FIRE BOMB SUCH FACT WOULD HAVE BEEN DISCOVERED IN THE COURSE OF THE INVESTIGATION. IN ANY EVENT, IF THE DAMAGES WERE NOT CAUSED BY THE ELEMENTS, AT LEAST THEY WERE THE RESULT OF CIRCUMSTANCES OVER WHICH THE GOVERNMENT HAD NO CONTROL.

IT HAS BEEN HELD BY THE COURTS THAT IN THE ABSENCE OF AN UNQUALIFIED EXPRESS AGREEMENT TO REPAIR, A TENANT IS NOT LIABLE FOR ACCIDENTAL DAMAGE NOR BOUND TO REBUILD IF THE BUILDINGS ARE ACCIDENTALLY DESTROYED. SEE UNITED STATES V. BOSTWICK, 94 U.S. 53. A TENANT IS ONLY REQUIRED TO USE REASONABLE DILIGENCE TO PROTECT BUILDINGS ON THE LEASED PREMISES FROM DESTRUCTION BY FIRE AND HE IS NOT LIABLE FOR ACCIDENTAL DESTRUCTION BY FIRE. UNITED STATES V. BOSTWICK, SUPRA. THE TENANT IS ONLY LIABLE IF THE BUILDINGS ARE DESTROYED BY HIS NEGLIGENCE. SEE 32 AMER.JUR., LANDLORD AND TENANT, SECTIONS 782 AND 783, AND CITED CASES IN THE FOOTNOTES. ALSO, IT HAS BEEN HELD THAT WHERE THE TENANT'S OBLIGATION TO RESTORE HAS REFERENCE TO DAMAGE OR DESTRUCTION OTHER THAN FROM THE ELEMENTS, THE TENANT IS UNDER NO OBLIGATION TO RESTORE FIXTURES OR EQUIPMENT DESTROYED BY FIRE WITHOUT FAULT OR NEGLIGENCE ON THE PART OF THE TENANT. ANDERSON V. FERGUSON, 135 P.2D 302.

IN THE CURRENT MATTER THE PREMISES WERE BEING USED FOR THE PURPOSE FOR WHICH THEY WERE LEASED. THE RECORD FAILS TO AFFIRMATIVELY ESTABLISH ANY NEGLIGENCE IMMEDIATELY BEFORE THE FIRE ON THE PART OF THE UNITED STATES, AND THE FACT THAT ADMINISTRATIVE PERSONNEL MAY HAVE DISCUSSED WITH YOU THE POSSIBILITY OF A CASH SETTLEMENT MAY NOT BE VIEWED AS AN ADMISSION OF LIABILITY BY THIS OFFICE. UNDER THE LAW IT IS INCUMBENT UPON YOU TO ESTABLISH YOUR CLAIM. ON THE PRESENT RECORD ITS VALIDITY IS AT BEST OPEN TO DOUBT AND CONJECTURE AND, HENCE, IT IS NOT ESTABLISHED. UNDER THOSE CIRCUMSTANCES THE ACCOUNTING OFFICERS OF THE GOVERNMENT ARE NOT AUTHORIZED TO CERTIFY FOR PAYMENT CLAIMS WHICH ARE OF DOUBTFUL VALIDITY. SEE LONGWILL V. UNITED STATES, 17 C.CLS. 288; CHARLES V. UNITED STATES, 19 C.CLS. 316. ..END :