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A-17215, SEPTEMBER 29, 1927, 7 COMP. GEN. 243

A-17215 Sep 29, 1927
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CONSTITUTES WASTE FOR WHICH THE LESSOR IS ENTITLED TO DAMAGES. 6 COMP. THE MAXIM CAVEAT EMPTOR IS NOT APPLICABLE IN SUPPORT OF A CLAIM FOR DAMAGES TO LEASED PREMISES IN ADDITION TO THE AGREED RENTAL. IN WHICH WAS SUSTAINED SETTLEMENT NO. 0149609 OF SEPTEMBER 28. THE TRACT UPON WHICH CAMP STUART WAS LOCATED WAS OCCUPIED UNDER A LEASE EXECUTED JULY 21. IN THE HEADING OF WHICH IT WAS STATED THAT THE LAND WAS "TO BE OCCUPIED BY THE UNITED STATES GOVERNMENT AS A CANTONMENT.'. THIS LEASE WAS RENEWED FROM TIME TO TIME UP TO JUNE 30. THE TRACT OCCUPIED BY CAMP HILL WAS UNDER A LEASE DATED JULY 5. IN THE HEADING OF WHICH LEASE IT WAS STATED THAT THE LAND WAS "TO BE OCCUPIED BY THE UNITED STATES GOVERNMENT FOR PORT OF EMBARKATION PURPOSES.'.

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A-17215, SEPTEMBER 29, 1927, 7 COMP. GEN. 243

LEASES - DAMAGES - WASTE THE DESTRUCTION OF FARMHOUSES UPON TRACTS LEASED FOR CANTONMENT AND CAMP SITES, ALTHOUGH NECESSARY FOR THE USE OF THE LAND FOR THE PURPOSES FOR WHICH LEASED, CONSTITUTES WASTE FOR WHICH THE LESSOR IS ENTITLED TO DAMAGES. 6 COMP. GEN. 562, MODIFIED. CLAIMS FOR DAMAGES RESULTING FROM BREACH OF AN IMPLIED COVENANT NOT TO COMMIT WASTE ON LEASED PREMISES MAY NOT BE CERTIFIED TO CONGRESS BY THE GENERAL ACCOUNTING OFFICE. THE MAXIM CAVEAT EMPTOR IS NOT APPLICABLE IN SUPPORT OF A CLAIM FOR DAMAGES TO LEASED PREMISES IN ADDITION TO THE AGREED RENTAL.

DECISION BY COMPTROLLER GENERAL MCCARL, SEPTEMBER 29, 1927:

THE OLD DOMINION LAND CO. HAS REQUESTED RECONSIDERATION OF THE DECISION OF THIS OFFICE OF MARCH 2, 1927, 6 COMP. GEN. 562, IN WHICH WAS SUSTAINED SETTLEMENT NO. 0149609 OF SEPTEMBER 28, 1926, DISALLOWING ITS CLAIM FOR $3,314.40 AS PAYMENT FOR THE DESTRUCTION OF TWO BUILDINGS KNOWN AS THE BOWMAN HOUSE AND THE TAYLOR HOUSE, FORMERLY LOCATED UPON THE SITES OF CAMP HILL AND CAMP STUART, VA.

THE TRACT UPON WHICH CAMP STUART WAS LOCATED WAS OCCUPIED UNDER A LEASE EXECUTED JULY 21, 1917, EFFECTIVE AUGUST 20, 1917, AND RUNNING TO JUNE 30, 1918, AT A RENTAL OF $382.33 PER MONTH, IN THE HEADING OF WHICH IT WAS STATED THAT THE LAND WAS "TO BE OCCUPIED BY THE UNITED STATES GOVERNMENT AS A CANTONMENT.' THIS LEASE WAS RENEWED FROM TIME TO TIME UP TO JUNE 30, 1920. THE TRACT OCCUPIED BY CAMP HILL WAS UNDER A LEASE DATED JULY 5, 1917, EFFECTIVE FROM THAT DATE, RUNNING TO JUNE 30, 1918, IN THE HEADING OF WHICH LEASE IT WAS STATED THAT THE LAND WAS "TO BE OCCUPIED BY THE UNITED STATES GOVERNMENT FOR PORT OF EMBARKATION PURPOSES.' THE CONSIDERATION FOR THIS LATTER LEASE WAS FIXED AT $412.50 PER MONTH DURING THE FIRST YEAR AND SUBJECT TO RENEWAL AT $312.50 PER MONTH THEREAFTER, NO EXPLANATION OF THE HIGHER RENTAL FOR THE FIRST YEAR BEING GIVEN. THIS LEASE WAS RENEWED BY A FORMAL LEASE DATED JULY 1, 1918, IN THE HEADING OF WHICH IT WAS STATED THAT THE LAND WAS TO BE OCCUPIED AS CAMP SITES. THIS WAS AGAIN RENEWED JULY 1, 1919, FOR USE AS CAMP SITES UP TO JUNE 30, 1920. THE TWO BUILDINGS IN QUESTION WERE NECESSARILY DESTROYED BY THE GOVERNMENT DURING THE FIRST YEAR'S LEASES TO MAKE WAY FOR CANTONMENT CONSTRUCTION. IN NONE OF THE LEASES OR RENEWALS IS THERE ANY EXPRESS PROVISION MAKING THE UNITED STATES LIABLE IN DAMAGES FOR ANY WASTE COMMITTED NOR ANY PROVISION REQUIRING THE GOVERNMENT TO REPLACE BUILDINGS OR OTHER IMPROVEMENTS DESTROYED BY ITS OCCUPATION OF THE LAND, NOR ANY COVENANT TO RESTORE THE LAND TO THE CONDITION IN WHICH IT WAS PRIOR TO OCCUPATION UNDER THE LEASE.

IN SAID DECISION OF MARCH 2, 1927, IT WAS STATED:

* * * IN THE ABSENCE OF SUCH COVENANTS THE UNITED STATES IS NOT LIABLE FOR ANY DAMAGES RESULTING FROM THE REASONABLE USE OF THE LAND FOR THE PURPOSE FOR WHICH LEASED. UNITED STATES V. BOSTWICK, 94 U.S. 53; 1 COMP. GEN. 134, 276; 3 ID. 356; 4 ID. 211; 5 ID. 126 AND 731. THE TRACTS HAVING BEEN EXPRESSLY LEASED FOR CANTONMENTS AND CAMP-SITE PURPOSES, WHICH NECESSARILY WOULD CONTEMPLATE THE CLEARING OF THE PREMISES, THE UNITED STATES ACQUIRED THE RIGHT TO REMOVE SUCH BUILDINGS OR OTHER IMPROVEMENTS AS INTERFERED WITH THE USE OF THE LAND FOR THE PURPOSES FOR WHICH LEASED, WITHOUT LIABILITY TO THE OWNERS BEYOND THE PAYMENT OF THE STIPULATED RENTAL. * * *

IT IS URGED IN SUPPORT OF THE REQUEST FOR RECONSIDERATION: (1) THAT IRRESPECTIVE OF THE COVENANTS ACTUALLY IN THE LEASE THERE IS TO BE IMPLIED IN ALL LEASES A COVENANT AGAINST WASTE; (2) THAT THE UNITED STATES IS BOUND BY SUCH IMPLIED COVENANTS WHEN IT EXECUTES A LEASE, TO THE SAME EXTENT AS AN INDIVIDUAL; (3) THAT THE RULE OF CAVEAT EMPTOR APPLIES; (4) THAT THE DESTRUCTION OF A BUILDING UPON LEASED PREMISES IS WASTE UNDER ANY AND ALL CIRCUMSTANCES.

THE FIRST TWO POINTS URGED BY THE CLAIMANT ARE CONSIDERED AS APPLICABLE GENERALLY TO THIS CASE. THIS OFFICE DOES NOT, HOWEVER, APPREHEND HOW THE MAXIM OF CAVEAT EMPTOR APPLIES TO THE PRESENT SITUATION. THIS MAXIM, COMMONLY TRANSLATED AS "LET THE BUYER BEWARE," IS APPLICABLE EXCLUSIVELY TO THE PURCHASER (OR LESSEE) AND IS EMPLOYED IN THE LAW TO SIGNIFY THAT A PURCHASER, WHETHER OF REALTY OR PERSONALTY, IS NOT ONLY BOUND TO DISCOVER OBVIOUS DEFECTS FOR HIMSELF BUT IS CONFINED TO THE WARRANTIES WHICH HE HAS REQUIRED AND CAN NOT, IN THE ABSENCE OF FRAUD, RELY ON THE STATEMENTS OF THE SELLER. WERE THE PRESENT CASE A CLAIM BY THE UNITED STATES FOR THE COST OF TEARING DOWN THE BUILDINGS IN ORDER TO MAKE THE SITE AVAILABLE FOR A CAMP, THEN THE MAXIM MIGHT BE APPLICABLE, BUT SUCH IS NOT THE CASE. THIS MAXIM IS ONE TO BE AVAILED OF AS A DEFENSE TO CLAIMS FOR DAMAGES ASSERTED AGAINST THE SELLER OR LESSOR. IT IS NOT APPARENT HOW IT CAN BE INVOKED IN A CLAIM BY THE SELLER OR LESSOR TO RECOVER MORE THAN THE CONSIDERATION AGREED UPON IN A FORMAL CONTRACT OR LEASE.

AS TO THE FOURTH ARGUMENT ADVANCED, THE CLAIMANT CITES VARIOUS AUTHORITIES, INCLUDING THE CASE OF THE UNITED STATES V. BOSTWICK, 94 U.S. 53. THIS CASE ESTABLISHES BEYOND ALL QUESTION THE POINTS ONE AND TWO CONCEDED ABOVE BUT WAS ALSO CITED BY THIS OFFICE AS SUPPORTING THE CONCLUSION REACHED IN THE DECISION OF MARCH 2, 1927; THAT IS, THAT THE REASONABLE USE OF THE LAND FOR THE PURPOSES FOR WHICH LEASED DOES NOT MAKE THE LESSEE LIABLE IN DAMAGES AS FOR WASTE. IN THE BOSTWICK CASE THE LAND WAS LEASED WITHOUT RESTRICTION AS TO THE USES TO BE MADE THEREOF AND IT WAS USED BY THE GOVERNMENT FOR A HOSPITAL AND ALSO FOR A CAMP GROUND. THE COURT IN REMANDING THE CASE FOR JUDGMENT STATED:

THE JUDGMENT MUST BE REVERSED, AND THE CAUSE REMANDED, WITH INSTRUCTIONS TO RENDER JUDGMENT AGAINST THE UNITED STATES FOR THE RENT OF THE PREMISES FROM JUNE 30 TO AUG. 23, 1862, AT THE RATE OF $250 PER MONTH, AND FOR THE DAMAGES DONE TO THE PROPERTY OTHER THAN THE DESTRUCTION OF THE HOUSE BY FIRE DURING THE OCCUPATION OF THE UNITED STATES UNDER THEIR LEASE EXCEPT TO THE EXTENT THAT THE SAME NECESSARILY RESULTED FROM THE USE OF THE PREMISES BY THE SOLDIERS OF THE ARMY OF THE UNITED STATES FOR THE PURPOSES OF A HOSPITAL AND CAMP GROUND, * * *.

WHILE THE INSTRUCTIONS OF THE COURT STANDING BY THEMSELVES APPEAR TO SUPPORT THE DECISION OF MARCH 2, 1927, A FURTHER CONSIDERATION OF THE DECISION AS A WHOLE LEADS TO THE CONCLUSION THAT THE INSTRUCTIONS IN THE LAST PARAGRAPH OF THE DECISION WERE NOT INTENDED TO AND DID NOT MODIFY THAT PARAGRAPH OF THE DECISION WHICH HOLDS:

IT APPEARS IN THE FINDING THAT DURING THE OCCUPANCY UNDER THE LEASE ORNAMENTAL TREES WERE DESTROYED; FENCES AND WALLS TORN DOWN, AND THE MATERIALS USED FOR SIDEWALKS AND THE ERECTION OF OTHER BUILDINGS, OR CARRIED AWAY; AND THAT STONE WAS QUARRIED AND GRAVEL DUG FROM A STONE QUARRY AND GRAVEL-PIT ON THE PREMISES, AND TAKEN AWAY. THIS WAS VOLUNTARY WASTE, AND WITHIN THE PROHIBITION OF THE IMPLIED AGREEMENT IN THE LEASE. FOR THIS THE COURT OF CLAIMS CAN AWARD COMPENSATION IN THIS ACTION. * *

IN OTHER WORDS, THE DECISION OF THE UNITED STATES SUPREME COURT AS A WHOLE, WHILE EXCEPTING FROM THE JUDGMENT ANY DAMAGES WHICH NECESSARILY RESULTED FROM THE USE OF THE PREMISES BY THE SOLDIERS FOR A HOSPITAL OR CAMP GROUND, AT THE SAME TIME DETERMINED THAT THE DAMAGES OR WASTE SPECIFICALLY REFERRED TO IN THE QUOTED PARAGRAPH DID NOT NECESSARILY RESULT FROM SUCH USE OF THE LEASED PREMISES BUT CONSTITUTED WASTE IRRESPECTIVE OF THE USE OF THE LAND.

IN VIEW OF THE FOREGOING AND UPON A FURTHER CONSIDERATION OF ALL THE FACTS AND CIRCUMSTANCES, I AM OF THE OPINION THAT THE DESTRUCTION OF THE TWO BUILDINGS IN QUESTION WAS NOT AUTHORIZED UNDER THE LEASE CLAIM THEREFOR MIGHT HAVE BEEN ALLOWED BY THIS OFFICE HAD THERE BEEN ANY APPROPRIATION AVAILABLE THEREFOR. THE DECISION OF MARCH 2, 1927, IS MODIFIED ACCORDINGLY.

HOWEVER, NOTWITHSTANDING THAT THERE APPEARS TO HAVE BEEN A BREACH OF THE IMPLIED COVENANT NOT TO COMMIT WASTE, THE PAYMENT OF DAMAGES FOR SUCH BREACH IS NOT AUTHORIZED UNDER THE APPROPRIATION FOR BARRACKS AND QUARTERS UNDER AUTHORITY OF WHICH THE LEASES WERE MADE, 2 COMP. GEN. 149, NOR IS THERE ANY OTHER APPROPRIATION NOW AVAILABLE THEREFOR. SEE ALSO 27 COMP. DEC. 594; 1 COMP. GEN. 149; 2 ID. 149; A 17379, MARCH 21, 1927. THE MATTER IS ONE FOR PRESENTATION TO THE CONGRESS BY THE ADMINISTRATIVE DEPARTMENT AND NOT ONE FOR CERTIFICATION AS A CLAIM BY THE GENERAL ACCOUNTING OFFICE.

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