B-124078, APR. 12, 1956

B-124078, APR. 12, 1956

TO HONORABLE, W. B. TURNER:

YOUR LETTERS OF FEBRUARY 2, AND 4, 1956, REQUEST FURTHER CONSIDERATION OF YOUR CLAIM FOR DAMAGES INCIDENT TO ACQUISITION AND RESALE BY THE TENNESSEE VALLEY AUTHORITY OF CERTAIN LAND IN HUMPHREYS COUNTY, TENNESSEE, ACQUIRED IN CONNECTION WITH THE CONSTRUCTION OF THE KENTUCKY DAM.

IN YOUR PRESENT LETTER AND YOUR LETTER OF JULY 12, 1955, IT IS CONTENDED THAT THE TURNER HEIRS ARE ENTITLED TO $7,052 AS THE NET PROFITS DERIVED FROM THE SALE OF 156.3 ACRES OF LAND AND THE TIMBER THEREON. IN OUR PRIOR LETTERS OF JUNE 7 AND DECEMBER 12, 1955, TO YOU, WE CONCLUDED, FOR THE REASONS THEREIN STATED THAT THIS OFFICE PROPERLY COULD NOT CONSIDER YOUR CLAIM AND THAT EVEN IF THE CLAIM WERE PROPERLY BEFORE US NO ALLOWANCE COULD BE MADE.

IN REQUESTING RECONSIDERATION YOU ASSERT, IN EFFECT, THAT YOUR CLAIM IS DIRECTLY AGAINST THE UNITED STATES SINCE THE TITLE TO THE LAND WAS TAKEN IN THE NAME OF THE UNITED STATES. YOU FURTHER ALLEGE SUCH LAND WAS WRONGFULLY AND ILLEGALLY ACQUIRED BY FALSE REPRESENTATIONS THAT IT WAS NEEDED FOR A PUBLIC PURPOSE AND THAT IT WOULD BE TAKEN BY CONDEMNATION IN THE ABSENCE OF A VOLUNTARY CONVEYANCE. IT APPEARS TO BE YOUR VIEW THAT SINCE THE LAND WAS SOLD TO OTHER PARTIES IT CANNOT BE REGARDED AS HAVING BEEN ACQUIRED FOR A PUBLIC PURPOSE. THEREFORE, YOU CONTEND THAT WHEN THE LAND BECAME EXCESS IT SHOULD HAVE BEEN RECONVEYED TO THE TURNER HEIRS AND THAT SINCE IT WAS SOLD TO OTHERS YOU ARE ENTITLED TO THE NET PROFITS BY WAY OF DAMAGES. YOU ASSERT THAT SINCE THE ABOVE PROCEEDS WERE DEPOSITED INTO THE TREASURY OF THE UNITED STATES, THE AUTHORITY NO LONGER HAS ANY JURISDICTION IN THE MATTER.

THE BROAD POWERS VESTED IN THE AUTHORITY WERE POINTED OUT BY THE SUPREME COURT IN UNITED STATES EX REL, TENNESSEE VALLEY AUTHORITY V. WELCH, 327 U.S. 546. THE COURT STATED THAT---

"* * * THE BROAD RESPONSIBILITIES PLACED ON THE AUTHORITY RELATE TO NAVIGABILITY, FLOOD CONTROL, REFORESTATION, MARGINAL LANDS, AND AGRICULTURAL AND INDUSTRIAL DEVELOPMENT OF THE WHOLE TENNESSEE VALLEY. THE T.V.A. WAS EMPOWERED TO MAKE CONTRACTS, PURCHASE AND SELL PROPERTY DEEMED NECESSARY OR CONVENIENT IN THE TRANSACTION OF ITS BUSINESS, AND TO BUILD DAMS, RESERVOIRS, TRANSMISSION LINES, POWER HOUSES, AND OTHER STRUCTURES. IT WAS PARTICULARLY ADMONISHED TO COOPERATE WITH OTHER GOVERNMENTAL AGENCIES--- FEDERAL, STATE, AND LOCAL--- SPECIFICALLY IN RELATION TO THE PROBLEM OF "READJUSTMENT OF THE POPULATION DISPLACED BY THE CONSTRUCTION OF DAMS, THE ACQUISITION OF RESERVOIR AREAS, THE PROTECTION OF WATERSHEDS, THE ACQUISITION OF RIGHTS-OF-WAY, AND OTHER NECESSARY ACQUISITIONS OF LAND, IN ORDER TO EFFECTUATE THE PURPOSES OF THE ACT.'"

AFTER CITING SPECIFIC SECTIONS OF THE ACT AUTHORIZING ACQUISITION OF LAND, THE COURT STATED THAT---

"ALL OF THESE PROVISIONS SHOW A CLEAR CONGRESSIONAL PURPOSE TO GRANT THE AUTHORITY ALL THE POWER NEEDED TO ACQUIRE LANDS BY PURCHASE OR BY CONDEMNATION WHICH IT DEEMS NECESSARY FOR CARRYING OUT THE ACT'S PURPOSES.'

IN OTHER WORDS, DISCRETION AS TO THE EXTENT, AMOUNT OF, OR TITLE OF PROPERTY TO BE TAKEN HAS BEEN CONFERRED BY LEGISLATION UPON THE AUTHORITY; AND IN THE ABSENCE OF BAD FAITH OR ABUSE OF THAT DISCRETION THROUGH CAPRICIOUS OR ARBITRARY ACTION THE AUTHORITY'S DETERMINATION IS FINAL. SIMMONDS V. UNITED STATES, 199 F.2D 305; UNITED STATES V. LACY, 116 F.SUPP. 15; BERMAN V. PARKER, 348 U.S. 26; UNITED STATES V. CARMACK, 329 U.S. 230; UNITED STATES V. 277.97 ACRES OF LAND, 112 F.SUPP. 159.

THERE IS NOTHING IN THE PRESENT RECORD INDICATING ANY BAD FAITH OR ABUSE OF DISCRETION AT THE TIME OF THE ACQUISITION OF THE PROPERTY ON THE PART OF REPRESENTATIVES OF THE AUTHORITY AND THE FACT THAT CERTAIN PORTIONS THEREOF OR TIMBER THEREFROM MAY LATER HAVE BEEN SOLD AT PRICES IN EXCESS OF THAT WHICH THE AUTHORITY PAID YOU FOR THE LAND WOULD NOT, OF COURSE, ESTABLISH ANY LACK OF GOOD FAITH IN THE ACQUISITION OF THE LAND. YOU WERE INFORMED OF YOUR RIGHT EITHER TO ACCEPT THE AMOUNT OFFERED FOR THE LAND OR TO JUST COMPENSATION THEREFOR AS DETERMINED IN CONDEMNATION PROCEEDINGS. THE ACCEPTANCE OF THE AMOUNT OFFERED APPEARS TO HAVE RESULTED IN A VOLUNTARY AND BINDING SALE AND THE FACT THAT THE LAND AND TIMBER THEREON WAS LATER, PROBABLY BY REASON OF THE CONSTRUCTION OF THE DAM, SOLD BY THE AUTHORITY AT A HIGHER PRICE THAN THAT PAID FOR THE LAND, OF COURSE, GIVES YOU NO RIGHT TO THE PROFIT JUST AS CONVERSELY HAD ITS VALUE BEEN LESSENED, YOU WOULD NOT HAVE BEEN REQUIRED TO BEAR THE LOSS.

MOREOVER, IF YOUR CLAIM IS BASED UPON BAD FAITH OR FRAUD, IT SOUNDS IN TORT; AND, IT IS WELL ESTABLISHED THAT THE ACCOUNTING OFFICERS ARE WITHOUT JURISDICTION TO SETTLE TORT CLAIMS ARISING IN OTHER GOVERNMENT AGENCIES. UNITED STATES V. CLAY PRODUCTS CO. 68 F.SUPP. 902.

FOR THE FOREGOING REASONS AND THE REASONS STATED IN OUR LETTERS OF JUNE 7 AND DECEMBER 12, 1955, TO YOU, THIS OFFICE PROPERLY MAY NOT ALLOW YOUR CLAIM. SUCH BEING THE CASE, IT WOULD APPEAR THAT NO USEFUL PURPOSE WOULD BE SERVED BY ANY FURTHER CORRESPONDENCE ADDRESSED TO THIS OFFICE AND, IF ANY IS RECEIVED, IT WILL BE FILED WITHOUT REPLY.