B-131894, OCT. 31, 1957

B-131894, OCT. 31, 1957

TO MR. N. EDWARD GROUP:

YOUR LETTER OF SEPTEMBER 10, 1957, REQUESTS FURTHER RECONSIDERATION OF YOUR CLAIM FOR LOSS AND DAMAGE TO PROPERTY ADJOINING ARTILLERY PARK, FORT BROOKE, PUERTO RICO, WHICH WAS DISALLOWED BY OUR SETTLEMENT OF APRIL 18, 1957. ON AUGUST 15, 1957, THE DISALLOWANCE WAS SUSTAINED.

YOUR ORIGINAL CLAIM WAS THAT THE UNITED STATES GOVERNMENT HAD BUILT UPON YOUR PROPERTY; CLOSED AND CEMENTED WINDOWS; HAD TAKEN POSSESSION OF A LOT DESCRIBED IN YOUR DEED MAKING IT IMPOSSIBLE FOR YOU TO REALIZE RENT, USE, OR TO ENGAGE IN FUTURE CONSTRUCTION. THE SETTLEMENT OF APRIL 18, 1957, DISALLOWED THE CLAIM UPON A SHOWING OF THE LAWS AND REGULATIONS UPON WHICH THE UNITED STATES GOVERNMENT ACQUIRED THE PROPERTY INCLUDING A DESCRIPTION THEREOF AND THAT A SURVEY CONDUCTED IN 1953 SHOWED NO DEVIATION FROM THE POINTS AND BOUNDARIES EMBODIED IN THE ORIGINAL DESCRIPTION. DISALLOWANCE WAS ALSO BASED UPON THE BARRING PROVISION OF SECTION 1863 OF THE CIVIL CODE OF PUERTO RICO AND THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, 31 U.S.C. 71A.

YOUR LETTER OF SEPTEMBER 10, 1957, STATES IN EFFECT THAT THE CLAIM IS NOT A CLAIM OF PUBLIC LANDS AND THAT THE TEN YEAR STATUTE OF LIMITATIONS IS NOT APPLICABLE BECAUSE (1) A CLAIM WAS FILED IN 1950 AND (2) THAT FOR THE REASON THAT YOU WERE IN THE MILITARY SERVICE THE LATEST DATE OF THE CLAIM SHOULD HAVE BEEN 1954 OR 1955.

IN ANSWER TO YOUR ASSERTION THAT THE CLAIM IS NOT A CLAIM OF PUBLIC LANDS WE AGREE THAT THIS IS SO AND FURTHER SAY THAT WE HAVE NEVER CONSIDERED YOUR CLAIM TO BE ONE OF PUBLIC LANDS. THIS MISUNDERSTANDING APPARENTLY STEMS FROM THE REFERENCE MADE IN THE SETTLEMENT OF APRIL 18, 1957, TO THE ACT OF JULY 1, 1902, 32 STAT. 731, 48 U.S.C. 746, WHICH WAS FOR THE PURPOSE OF SHOWING THE STATUTORY BASIS FOR THE TAKING OF LAND IN PUERTO RICO FOR PUBLIC PURPOSES BY THE UNITED STATES WHICH, TOGETHER WITH THE EXECUTIVE ORDER ISSUED PURSUANT THERETO, PROVIDE EVIDENCE OF THE BOUNDARY LINES OF THE GOVERNMENT PROPERTY. YOUR CLAIM HAS BEEN CONSIDERED BY OUR OFFICE AND THE DEPARTMENT OF THE ARMY TO BE ONE FOR COMPENSATION BECAUSE OF AN ALLEGED TAKING OF YOUR PROPERTY BY THE UNITED STATES, UNDER WHICH CIRCUMSTANCES AN IMPLIED CONTRACT TO COMPENSATE WOULD ARISE. HOWEVER, YOUR CLAIM COULD ALSO BE CONSIDERED IN THE NATURE OF ONE FOR DAMAGES ARISING FROM TRESPASSING ACTIVITIES ON THE PART OF THE GOVERNMENT, THE REMEDY FOR WHICH WOULD BE A TORT CLAIM FOR THE RECOVERY OF SUCH DAMAGE. HOWEVER, CONSIDERING THE CLAIM ON THIS BASIS, THE LAW WITH RESPECT TO THE TORT LIABILITY OF THE UNITED STATES BARS SUCH CLAIMS UNLESS ACTION IS TAKEN THEREON WITHIN TWO YEARS AFTER SUCH CLAIM ACCRUES. SEE 28 U.S.C. 2401/B). ALSO OUR OFFICE HAS NO JURISDICTION OVER TORT CLAIMS.

AS TO YOUR SECOND ASSERTION, THE RECORD BEFORE OUR OFFICE CONTAINS NO EVIDENCES THAT A CLAIM WAS MADE IN 1950, SUCH AS IS ALLEGED BY YOU. FURTHER, THE PROVISIONS IN THE ACT OF OCTOBER 9, 1940, A COPY OF WHICH WAS FORWARDED TO YOU, EXTENDED THE TIME FOR FILING A CLAIM BY PERSONS IN THE ARMED FORCES OF THE UNITED STATES FIVE YEARS AFTER PEACE IS ESTABLISHED (JULY 25, 1947) WHICH WOULD CARRY THE TIME OF LIABILITY ONLY TO JULY 25, 1952.

AS YOU WERE ADVISED IN THE SETTLEMENT OF APRIL 18, 1957, THE SURVEY CONDUCTED IN 1953 SHOWED THAT THE ACTUAL POINTS AND BOUNDARY LINES SURVEYED CORRESPONDED TO THOSE EMBODIED IN THE EXECUTIVE ORDER PUBLISHED UNDER GENERAL ORDERS NO. 97, HEADQUARTERS OF THE ARMY, ADJUTANT GENERAL'S OFFICE, WASHINGTON, D.C., JULY 7, 1903. SINCE YOU ALLEGE THE ENCROACHMENT BEGAN IN 1944 OR 1945, THE SURVEY TAKEN IN 1953 PROPERLY REFUTES THIS ALLEGATION. WHILE YOU CONTEND IN YOUR ORIGINAL LETTER TO THE AREA ENGINEER AT SAN JUAN, THAT THE ACT GIVING RISE TO YOUR CLAIM WAS THE ADDITION OF TWO BUILDINGS IN 1944 AND 1945, THE REPORT RECEIVED FROM THE DEPARTMENT OF THE ARMY ADMITS OF NO NEW STRUCTURES AND STATES THAT THE ARTILLERY PARK BUILDING SUFFERED NO MAJOR PHYSICAL CHANGES FROM ITS ORIGINAL STATE, EVEN THOUGH MODERNIZED. THE FOREGOING STATEMENTS PROVIDES A SUFFICIENT LEGAL BASIS FOR THE DENIAL OF YOUR CLAIM ON THE MERITS.

FURTHER, SECTION 1863 OF THE CIVIL CODE OF PUERTO RICO PROVIDES THAT REAL ACTIONS WITH REGARD TO REAL PROPERTY PRESCRIBE AFTER 30 YEARS. SINCE THE GOVERNMENT HAS HAD CONTINUOUS POSSESSION OF THE PROPERTY SINCE 1903, ACTION AGAINST THE PROPERTY IS BARRED UNDER SAID SECTION 1863 OF THE CIVIL CODE OF PUERTO RICO. ALSO, ANY RIGHT TO CLAIM COMPENSATION FOR AN UNLAWFUL TAKING OF PROPERTY ACCRUED AT THE TIME OF THE COMMISSION OF THE UNLAWFUL ACT OR ACTS GIVING RISE TO THE CLAIM WHICH YOU ALLEGE AS BEING IN 1944 OR 1945. THEREFORE, THE ACT OF OCTOBER 9, 1940, BARRING ANY CLAIMS THEREUNDER NOT RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN TEN FULL YEARS AFTER THE DATE OF CLAIM ACCRUED, OR IN THE CASE OF PERSONS SERVING IN THE ARMED FORCES OF THE UNITED STATES WITHIN FIVE YEARS AFTER PEACE IS ESTABLISHED (JULY 25, 1947), WHICHEVER IS LATER, PRECLUDES FURTHER CONSIDERATION OF YOUR CLAIM AS YOUR RIGHTS WITH RESPECT THERETO ARE IDENTICAL WITH THOSE OF THE OWNER OF THE PREMISES AT THE TIME OF THE ALLEGED UNLAWFUL ACT OR ACTS OF THE UNITED STATES.

ACCORDINGLY, THE SETTLEMENT OF APRIL 18, 1957, DISALLOWING YOUR CLAIM AND THE DECISION OF AUGUST 15, 1957, ARE REGARDED AS CORRECT AND ARE THEREFORE SUSTAINED.