B-116090, OCT. 12, 1955

B-116090, OCT. 12, 1955

TO THE HONORABLE SECRETARY OF THE INTERIOR:

REFERENCE IS MADE TO OUR DECISION OF JUNE 9, 1954, B-116090, WHEREIN YOU WERE ADVISED THAT CERTAIN CONTRACTS OF EASEMENT ENTERED INTO ON BEHALF OF THE GOVERNMENT BY THE BUREAU OF RECLAMATION COULD BE AMENDED TO PROVIDE FOR PAYMENT TO THE INDIVIDUALS INVOLVED FOR DESTRUCTION OR DAMAGE TO CROPS AND IMPROVEMENTS GROWING AND SITUATED ON THE LANDS EMBODIED IN THE EASEMENTS.

IN THE CASE OF CONTRACT OF EASEMENT NO. 158R-540, DATED JANUARY 8, 1952, ENTERED INTO WITH ALTON AND ELAINE DUKE, THE BUREAU HAD BY CONTRACT NO. 14 -06-303-402, DATED APRIL 10, 1953, RELATING TO PURCHASE OF IMPROVEMENTS ON RIGHT OF WAY FOR LATERAL M, 38.5-2.9-UNIT NO. 1, AGREED TO PAY THE DUKES THE TOTAL SUM OF $745.11 AS FULL COMPENSATION FOR THE TRANSFER AND ASSIGNMENT TO THE UNITED STATES OF ALL RIGHTS IN THE GROWING CROPS AND IMPROVEMENTS ON THE EASEMENT LANDS. SUCH SUM, AS INDICATED BY THE REPORT OF APPRAISAL, INCLUDED THE AMOUNT OF $211.41 TO COMPENSATE THE GRANTORS OF THE EASEMENT FOR 1.14 ACRES IN GROWING COTTON WHICH WAS TO BE DAMAGED OR DESTROYED, IT BEING STATED IN THE APPRAISAL REPORT THAT THE "FIRST PICKING" OF COTTON HAD BEEN MADE APPROXIMATELY ONE MONTH PRIOR TO OCTOBER 5, 1952, THE DATE OF APPRAISAL.

IN OUR DECISION, IT WAS STATED THAT IT APPEARED FROM THE REPORT FURNISHED BY OUR FIELD REPRESENTATIVES THAT ALTON DUKE ADMITTED HAVING HARVESTED ABOUT 500 POUNDS OF COTTON, VALUED AT ABOUT $200, FROM EASEMENT LANDS BETWEEN THE DATE OF APPRAISAL AND THE DATE THE GOVERNMENT CONTRACTOR STARTED WORK ON THE PREMISES, WHICH WAS OCTOBER 16, 1952. HENCE, YOU WERE ADVISED THAT PAYMENT OF ANY AMOUNT IN EXCESS OF $11.41 TO THE DUKES ON ACCOUNT OF THE COTTON CROP UNDER THE CONTRACT WOULD NOT BE AUTHORIZED, AND THAT THE CONTRACT SHOULD BE AMENDED ACCORDINGLY.

ENCLOSED IS A LETTER DATED JULY 18, 1955, TOGETHER WITH ENCLOSURES REFERRED TO THEREIN, ADDRESSED TO US BY ALTON DUKE, WHEREIN HE CONTENDS THAT THE FULL AMOUNT STIPULATED TO BE PAID IN THE CONTRACT IS DUE HIM. STATES THAT SEED COTTON SUFFICIENT TO YIELD 500 POUNDS OF LINT COTTON COULD NOT POSSIBLY HAVE MATURED ON THE EASEMENT LANDS SO AS TO BE HARVESTABLE DURING THE PERIOD BETWEEN THE DATE OF APPRAISAL AND THE TIME WHEN THE CONTRACTOR STARTED TO WORK. ALSO, HE STATES:

"* * * EVEN IF I HAD PICKED THE FIRST PICKING AFTER THE APPRAISAL IT WOULD HAVE BEEN WORTH ONLY $66.00 BECAUSE 500 POUNDS OF SEED COTTON WILL PRODUCE ONLY 165 POUNDS OF LINT.'

A RE-EXAMINATION OF THE REPORT MADE BY OUR REPRESENTATIVES SHOWS THAT MR. G. E. FULTS, CHIEF INSPECTOR (GROUP 2), LOWER COLORADO RIVER DISTRICT, STATED ON FEBRUARY 3, 1954, THAT THE COTTON CROP ON THE EASEMENT LANDS WAS INTACT AT THE TIME THE GOVERNMENT CONTRACTOR STARTED WORK ON THE PREMISES. HENCE, IT APPEARS THAT MR. DUKE MAY HAVE BEEN REFERRING TO THE FIRST PICKING OF THE COTTON CROP WHEN HE ADMITTED THAT HE HAD HARVESTED ABOUT 500 POUNDS OF COTTON FROM THE LAND, WHEREAS OUR REPRESENTATIVE BELIEVED THAT HE WAS REFERRING TO A LATER PICKING MADE DURING THE PERIOD OF TIME IN QUESTION. ALSO, THE REPORT INDICATES THAT A COTTON CROP ORDINARILY IS HARVESTED IN TWO PICKINGS AND ONE "CLEAN UP" DURING THE MONTHS OF OCTOBER, NOVEMBER AND DECEMBER. SUCH FACT WOULD APPEAR TO LEND SUPPORT TO THE CONTRACTOR'S CONTENTION THAT SEED COTTON IN AN AMOUNT SUFFICIENT TO PRODUCE 500 POUNDS OF LINT COTTON COULD NOT HAVE BEEN HARVESTED FROM THE EASEMENT LANDS DURING THE CRITICAL PERIOD, CONSIDERING THE SMALL ACREAGE INVOLVED AND THE LENGTH OF TIME REQUIRED TO BRING THE ENTIRE CROP TO MATURITY. FROM THE INFORMATION IN THE REPORT IT APPEARS THAT THE $200-VALUE PLACED ON THE COTTON REPORTED TO HAVE BEEN HARVESTED AFTER THE DATE OF APPRAISAL WAS THAT WHICH WOULD HAVE BEEN APPLICABLE TO 500 POUNDS OF LINT COTTON.

UNDER THE ABOVE CIRCUMSTANCES, WE WILL ENTERTAIN NO OBJECTION TO PAYMENT TO THE DUKES WITHOUT ANY DEDUCTION ON ACCOUNT OF THE COTTON REPORTEDLY HARVESTED AFTER THE DATE OF APPRAISAL.