B-124078, DEC. 12, 1955

B-124078, DEC. 12, 1955

TO HONORABLE W. B. TURNER, COLUMBIA, TENNESSEE:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 17, 1955 AND PRIOR LETTERS, CONCERNING YOUR CLAIM FOR DAMAGES INCIDENT TO THE ACQUISITION BY THE TENNESSEE VALLEY AUTHORITY OF CERTAIN TRACTS OF LAND IN HUMPHREYS COUNTY, TENNESSEE, FOR USE IN THE CONSTRUCTION OF THE KENTUCKY DAM.

IT APPEARS FROM THE FACTS AS REPORTED BY THE AUTHORITY THAT, INCIDENT TO THE CONSTRUCTION OF THE DAM, THE AUTHORITY IN 1940 ENTERED INTO A CONTRACT WITH HUMPHREYS COUNTY, TENNESSEE, FOR RELOCATION OF ROADS TO MEET THE SITUATION WHICH WOULD EXIST UPON COMPLETION OF THE RESERVOIR. UNDER THE CONTRACT, THE AUTHORITY AGREED TO CONSTRUCT AND OBTAIN NECESSARY RIGHTS OF WAY FOR DESIGNATED NEW ROADS AND BRIDGES. THE COUNTY, IN RETURN RELEASED THE AUTHORITY AND THE UNITED STATES FROM CLAIMS FOR DAMAGES TO ROADS RESULTING FROM CONSTRUCTION OF THE RESERVOIR, AGREED TO CLOSE DESIGNATED EXISTING ROADS AS PUBLIC HIGHWAYS AND FURTHER AGREED TO INDEMNIFY AND SAVE HARMLESS THE AUTHORITY AND THE UNITED STATES FROM ALL CLAIMS AND ACTIONS ARISING OUT OF OR CONNECTED WITH THE FLOODING, CLOSING, ABANDONMENT OR IMPAIRMENT IN EFFICIENCY OF ANY ROADS WITHIN THE COUNTY RESULTING FROM CONSTRUCTION OF THE DAM AND RESERVOIR. THE ROAD RUNNING ROUGHLY PARALLEL TO THE TENNESSEE RIVER AND LEADING TO TWO OF YOUR PROPERTIES, PARTS OF WHICH WERE LATER PURCHASED FROM THE TURNER HEIRS BY THE AUTHORITY, WAS AMONG THE EXISTING ROADS SPECIFICALLY DESIGNATED FOR CLOSING UNDER THE AGREEMENT. THE CONTRACT BETWEEN THE COUNTY AND THE AUTHORITY WAS APPROVED ON BEHALF OF THE COUNTY BY A FORMAL RESOLUTION OF ITS COUNTY COURT ON OCTOBER 28, 1940, AND SUCH CONTRACT IS REPORTED TO HAVE BEEN A MATTER OF PUBLIC RECORD FROM THAT DATE.

ON JULY 16, 1941, THE TURNER HEIRS CONVEYED TRACTS GIR-5537, GIR 5555 AND TWO OTHER TRACTS TO THE UNITED STATES FOR A CONSIDERATION OF $30,833.34. THE ROAD REFERRED TO ABOVE, WHICH WAS TO BE CLOSED UNDER THE ABOVE CONTRACT WITH THE COUNTY PASSED THROUGH THE TWO ABOVE NUMBERED TRACTS, SO THAT THEIR ACQUISITION ISOLATED YOUR REMAINING ADJOINING PROPERTIES FROM THE ACCESS ROAD IN ADVANCE OF ITS CLOSURE BY THE COUNTY. THE DEED TO THE AUTHORITY EXECUTED BY THE TURNER HEIRS RELEASED THE UNITED STATES AND THE COUNTY "FROM ANY AND ALL LIABILITY FOR DAMAGES TO THEIR REMAINING LAND BY REASON OF ANY RESULTING LOSS OR IMPAIRMENT OF ACCESS FACILITIES THERETO.'

THE AUTHORITY HAS REPORTED THAT IN COMPUTING THE TOTAL AMOUNT OFFERED TO AND ACCEPTED BY THE TURNER HEIRS AS CONSIDERATION FOR THE CONVEYANCE, THE AUTHORITY INCLUDED $3,000 FOR LOSS OF ACCESS TO THE PROPERTY RETAINED BY THEM IN THE ADJOINING TRACT GIR-5537 AND OVER $500 FOR LOSS OF ACCESS TO THAT ADJOINING TRACT GIR-5555.

IT APPEARS THAT, IN JUNE 1945, YOU PROTESTED THE CLOSING OF THE ACCESS ROAD. FOLLOWING CONSIDERABLE CORRESPONDENCE ON THE SUBJECT THE AUTHORITY IN LETTERS OF AUGUST 22 AND SEPTEMBER 11, 1945, TO YOU, DENIED ANY LIABILITY FOR THE CLOSING OF THE ROAD WHICH ACTION WAS AFFIRMED IN LETTER OF NOVEMBER 14, 1946, TO YOU.

ON APRIL 21, 1953, FOLLOWING COMPLETION OF THE DAM THE AUTHORITY, ACTING UNDER AUTHORITY OF SECTION 31 OF THE TENNESSEE VALLEY AUTHORITY ACT, AS AMENDED, 16 U.S.C. 831DD, SOLD THOSE PORTIONS OF TRACT GIR 5537 LYING ABOVE ELEVATION 375. THE AUTHORITY REPORTS THAT THE SALE WAS MADE AT PUBLIC AUCTION AS REQUIRED BY THE CITED STATUTE AND THAT YOU WERE NOTIFIED OF THE SALE AND AFFORDED AN OPPORTUNITY TO BID. ON JUNE 4, 1953, YOU WROTE THE AUTHORITY CLAIMING THAT (1) THE UNITED STATES NEVER HAD OBTAINED VALID TITLE TO THE PORTIONS OF TRACT GIR 5537 THUS SOLD SINCE THE SALE OF THE LAND INDICATED THAT ACQUISITION THEREOF WAS UNNECESSARY; (2) THAT IF THE LAND WAS NEEDED, SALE THEREOF WAS IMPROPER AND THAT THE SALE OF THE LAND TO THIRD PERSONS IMPAIRED ACCESS TO YOUR REMAINING LAND. YOUR CONTENTIONS WERE REJECTED BY THE AUTHORITY ON JUNE 18, 1953. THE AUTHORITY REPORTS THAT THEREAFTER YOU CALLED AT ITS KNOXVILLE OFFICE AND WROTE AGAIN IN NOVEMBER 1954, AND THAT IT REPLIED TO YOU IN DECEMBER 1954, AFFIRMING THE PRIOR ACTION HOLDING THAT THERE IS NO LEGAL BASIS FOR PAYMENT OF THE CLAIM. THE AUTHORITY REPORTS THAT WHILE YOUR PRESENT CLAIM IS PHRASED SOMEWHAT DIFFERENTLY FROM VARIOUS COMMUNICATIONS RECEIVED BY IT, NO NEW QUESTION IS PRESENTED SINCE YOUR PRESENT CLAIM ARISES FROM THE ORIGINAL ACQUISITION AND THE ARRANGEMENTS INCIDENT TO THE ACCESS ROAD.

IN OUR PRIOR LETTER OF JUNE 7, 1955, B-124078, YOU WERE INFORMED THAT WHILE THE AUTHORITY IS AN AGENCY OF THE UNITED STATES, IT CONSISTENTLY HAS BEEN HELD THAT CLAIMS AGAINST THE AUTHORITY ARE NOT CLAIMS AGAINST THE UNITED STATES IN THE SENSE OF BEING FOR ADJUSTMENT AND SETTLEMENT BY THIS OFFICE UNDER THE PROVISIONS OF SECTION 236; REVISED STATUTES, AS AMENDED BY SECTION 305, OF THE BUDGET AND ACCOUNTING ACT OF JUNE 10, 1921, 42 STAT. 24, 31 U.S.C. 41. ALSO, YOU WERE INFORMED THAT SETTLEMENT BY THIS OFFICE OF CLAIMS AGAINST THE AUTHORITY WOULD APPEAR TO BE INCONSISTENT WITH THE STATUTORY AUTHORITY UNDER WHICH THE AUTHORITY MAY SUE AND BE SUED IN ITS CORPORATE NAME AND OTHER GENERAL POWERS GRANTED THE CORPORATION UNDER THE TENNESSEE VALLEY AUTHORITY ACT, AS AMENDED. YOUR ATTENTION PARTICULARLY WAS INVITED TO 16 U.S.C. 831 (H) (B), PROVIDING THAT ,SUBJECT ONLY TO THE PROVISIONS OF THIS CHAPTER, THE CORPORATION IS AUTHORIZED TO MAKE SUCH EXPENDITURES AND TO ENTER INTO SUCH CONTRACTS, AGREEMENTS, AND ARRANGEMENTS, UPON SUCH TERMS AND CONDITIONS AND IN SUCH MANNER AS IT MAY DEEM NECESSARY, INCLUDING THE FINAL SETTLEMENT OF ALL CLAIMS AND LITIGATION BY OR AGAINST THE CORPORATION.'

THE ACT OF JULY 28, 1953, 67 STAT. 226, REDEFINING THE JURISDICTION OF THE COURT OF CLAIMS UNDER THE TUCKER ACT, EXPRESSLY PROVIDES, AS FOLLOWS:

"NOTHING HEREIN SHALL BE CONSTRUED TO GIVE THE COURT OF CLAIMS JURISDICTION IN SUITS AGAINST, OR FOUNDED ON ACTIONS OF, THE TENNESSEE VALLEY AUTHORITY, NOR TO AMEND OR MODIFY THE PROVISIONS OF THE TENNESSEE VALLEY AUTHORITY ACT OF 1933, AS AMENDED, WITH RESPECT TO SUITS BY OR AGAINST THE AUTHORITY.'

THIS STATUTORY PROVISION, TOGETHER WITH THE PROVISION OF THE TORT CLAIMS ACT, 60 STAT. 843, EXCLUDING FROM THE PURVIEW OF THAT STATUTE "ANY CLAIM ARISING FROM THE ACTIVITIES OF THE TENNESSEE VALLEY AUTHORITY," TOGETHER WITH THE OTHER STATUTORY PROVISONS RELATING TO THE AUTHORITY PREVIOUSLY CITED APPEAR CLEARLY TO SHOW THAT THE CONGRESS INTENDED THAT THE AUTHORITY SHOULD HAVE FULL RESPONSIBILITY FOR SETTLING ALL CLAIMS ARISING OUT OF ITS VARIOUS ACTIVITIES REGARDLESS OF THE FORM IN WHICH SUCH CLAIMS ARE PRESENTED.

FOR THE FOREGOING REASONS, THIS OFFICE PROPERLY MAY NOT CONSIDER YOUR CLAIM. IT MAY BE STATED, HOWEVER, THAT EVEN IF THE CLAIM WERE PROPERLY BEFORE THIS OFFICE NO ALLOWANCE COULD BE AUTHORIZED ON THE BASIS OF THE FACTS OF RECORD.