A-98727, NOVEMBER 19, 1938, 18 COMP. GEN. 463

A-98727, NOVEMBER 19, 1938, 18 COMP. GEN. 463

APPROPRIATIONS - AVAILABILITY - CONSTRUCTION OF DAM PARTLY ON FOREIGN SOIL NO OBJECTION TO THE USE OF APPROPRIATED FUNDS OTHERWISE PROPERLY AVAILABLE FOR THE CONSTRUCTION OF A DAM NECESSARY FOR AUTHORIZED FOREST SERVICE PURPOSES MERELY BECAUSE A PORTION OF THE DAM MAY BE ON CANADIAN SOIL, OWNERSHIP OF WHICH IS IN THE CROWN AND MAY NOT BE ACQUIRED BY THE UNITED STATES, PROVIDED APPROPRIATE CONSENT BE FIRST OBTAINED FROM THE CANADIAN GOVERNMENT, BUT, IF THE CANADIAN LAND INVOLVED WERE PRIVATELY OWNED, THERE SHOULD FIRST BE OBTAINED FROM THE OWNER A RIGHT IN PERPETUITY FOR ITS CONSTRUCTION AND MAINTENANCE, AS WELL AS THE CONSENT THERETO OF THE CANADIAN GOVERNMENT. 6 COMP. DEC. 877, DISTINGUISHED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF AGRICULTURE, NOVEMBER 19, 1938:

THERE HAS BEEN RECEIVED YOUR LETTER OF OCTOBER 20, 1938, AS FOLLOWS:

THERE IS UNDER CONSIDERATION AT THE PRESENT TIME A PROJECT INVOLVING EXPENDITURE OF SEVERAL THOUSAND DOLLARS FOR A DAM NEEDED FOR A PORTAGE WHICH WOULD REQUIRE SOME CONSTRUCTION ON CANADIAN SOIL. THE SMALL LAKE TO BE DAMMED LIES ON THE BOUNDARY BETWEEN THE UNITED STATES AND CANADA, THE PORTAGE BENEFITED BEING WITHIN THE UNITED STATES. IT IS NOT POSSIBLE, HOWEVER, TO CONSTRUCT THE DAM WHOLLY ON LAND WITHIN THE UNITED STATES. IS ASSUMED THAT CONSENT TO CONSTRUCT THE DAM CAN BE OBTAINED FROM THE INTERNATIONAL BOUNDARY COMMISSION BUT NO ACTION TOWARD OBTAINING SUCH CONSENT IS CONTEMPLATED UNTIL IT IS FIRST DETERMINED THAT THE FORESTSERVICE APPROPRIATION MAY BE EXPENDED ON A PROJECT LOCATED PARTLY ON LAND OUTSIDE THE BOUNDARIES OF THE UNITED STATES.

WHILE DECISION 6 COMP. DEC. 877 STATED AS THE GENERAL POLICY OF CONGRESS THAT NO PUBLIC BUILDINGS SHOULD BE ERECTED ON LAND NOT OWNED BY THE UNITED STATES, IT IS NOT CLEAR THAT THIS IS INTENDED TO APPLY TO IMPROVEMENTS OTHER THAN PUBLIC BUILDINGS. YOUR DECISION IS DESIRED ON THE FOLLOWING:

1. MAY THE APPROPRIATION AVAILABLE FOR IMPROVEMENTS IN THE FOREST SERVICE BE EXPENDED FOR CONSTRUCTION OF A DAM NECESSARY FOR AUTHORIZED FOREST SERVICE PURPOSES WHERE A PORTION OF THE DAM LIES IN CANADIAN TERRITORY, OWNERSHIP OF WHICH IS IN THE CROWN AND MAY NOT BE ACQUIRED BY THE UNITED STATES, PROVIDED CONSENT TO CONSTRUCT SUCH DAM IS OBTAINED THROUGH THE INTERNATIONAL BOUNDARY COMMISSION?

2. MAY SUCH AN IMPROVEMENT (OTHER THAN A BUILDING) BE PLACED PARTLY ON LAND IN PRIVATE OWNERSHIP OUTSIDE THE BOUNDARIES OF THE UNITED STATES, WITHOUT OBTAINING A RIGHT IN PERPETUITY?

WHILE, AS STATED IN THE DECISION REPORTED IN 6 COMP. DEC. 877, REFERRED TO IN YOUR LETTER, CERTAIN STATUTORY PROVISIONS REFERRED TO IN SAID DECISION, INCLUDING SECTIONS 355 AND 1136, REVISED STATUTES, INDICATE THAT IT IS THE GENERAL POLICY OF THE CONGRESS THAT NO PUBLIC BUILDING SHOULD BE ERECTED ON LAND NOT OWNED BY THE UNITED STATES, THE PRESENT SUBMISSION DOES NOT INVOLVE A QUESTION OF THE ERECTION OF A PUBLIC BUILDING--- A DAM BEING OBVIOUSLY NOT A PUBLIC BUILDING--- AND IN THAT RESPECT DIFFERS FROM THE CITED CASE. IT MAY BE STATED, HOWEVER, AS A GENERAL PROPOSITION, THAT IN THE ABSENCE OF EXPRESS STATUTORY PROVISION THERE IS NO AUTHORITY TO USE APPROPRIATED FUNDS FOR THE CONSTRUCTION OR ERECTION OF IMPROVEMENTS ON PROPERTY NOT OWNED BY THE GOVERNMENT.

IT APPEARS FROM YOUR LETTER THAT THE PORTAGE BENEFITED WOULD BE WITHIN THE UNITED STATES BUT THAT IT IS NOT POSSIBLE TO CONSTRUCT THE DAM WHOLLY ON LAND WITHIN THE UNITED STATES, AND IT IS UNDERSTOOD THEREFROM THAT THE GREATER PART OF THE DAM IS TO BE WITHIN THE UNITED STATES. THE CONSTRUCTION OF A PART OF THE DAM ON CANADIAN SOIL WOULD APPEAR FROM THE FACTS AS SET FORTH IN YOUR LETTER TO BE A NECESSARY INCIDENT TO THE CONSTRUCTION AND USE OF THE PORTAGE WITHIN THE UNITED STATES. UNDER THESE CIRCUMSTANCES, THIS OFFICE WILL NOT BE REQUIRED TO OBJECT TO THE USE OF AN APPROPRIATION OTHERWISE PROPERLY AVAILABLE FOR THE PROJECT MERELY BECAUSE THE DAM MAY BE PARTLY ON CANADIAN SOIL, PROVIDED, OF COURSE, THAT APPROPRIATE CONSENT THEREFOR BE FIRST OBTAINED FROM THE CANADIAN GOVERNMENT.

WITH RESPECT TO YOUR SECOND QUESTION, YOU ARE ADVISED THAT IF THAT PART OF THE PROPOSED DAM WHICH MAY BE LOCATED ON CANADIAN SOIL SHOULD BE PLACED ON PRIVATELY OWNED PROPERTY THERE SHOULD FIRST BE OBTAINED FROM THE OWNER THEREOF A RIGHT IN PERPETUITY FOR ITS CONSTRUCTION AND MAINTENANCE, AS WELL AS THE CONSENT THERETO OF THE CANADIAN GOVERNMENT.