B-149342, JUL. 19, 1962
Highlights
THIS AMOUNT IS BASED UPON THE PREMISE THAT YOUR CLIENT'S PROPERTY HAS BEEN DAMAGED IN THAT AMOUNT BECAUSE OF SILTATION ALLEGEDLY CAUSED BY THE CONSTRUCTION. IT IS REPORTED BY THE CORPS OF ENGINEERS THAT THE PRESENCE OF THE SANGAMON OUTLET CHANNEL HAS NOT MATERIALLY INCREASED THE RATE OF FILL ON YOUR CLIENT'S PROPERTY OVER THAT WHICH WOULD HAVE EXISTED IF THE OUTLET CHANNEL HAD NOT BEEN CONSTRUCTED CONSIDERING NORMAL WEATHER AND RIVER CYCLES AND ADDITIONAL CONCENTRATION OF RUN-OFF BY ADDED DITCHES. THE RULE IS WELL-ESTABLISHED AND LONG FOLLOWED BY THE GOVERNMENT ACCOUNTING OFFICES THAT IN THE EVENT OF A DISAGREEMENT BETWEEN THE FACTS AS STATED BY A CLAIMANT AND THOSE AS REPORTED BY THE ADMINISTRATIVE OFFICE CONCERNED.
B-149342, JUL. 19, 1962
TO MR. BURREL BARASH, ATTORNEY AT LAW:
ON JUNE 21, 1962, YOU WROTE TO OUR OFFICE IN BEHALF OF YOUR CLIENT, THE KNOXVILLE HUNTING CLUB, REQUESTING RECONSIDERATION OF OUR SETTLEMENT OF MAY 29, 1962, WHICH DISALLOWED YOUR CLIENT'S CLAIM FOR $25,000.
THIS AMOUNT IS BASED UPON THE PREMISE THAT YOUR CLIENT'S PROPERTY HAS BEEN DAMAGED IN THAT AMOUNT BECAUSE OF SILTATION ALLEGEDLY CAUSED BY THE CONSTRUCTION, BY THE DEPARTMENT OF THE ARMY, CORPS OF ENGINEERS, OF AN OUTLET CHANNEL DIVERTING THE FLOW OF THE SANGAMON RIVER ALONG A NEW CHANNEL.
AS POINTED OUT IN OUR SETTLEMENT OF MAY 29, IT IS REPORTED BY THE CORPS OF ENGINEERS THAT THE PRESENCE OF THE SANGAMON OUTLET CHANNEL HAS NOT MATERIALLY INCREASED THE RATE OF FILL ON YOUR CLIENT'S PROPERTY OVER THAT WHICH WOULD HAVE EXISTED IF THE OUTLET CHANNEL HAD NOT BEEN CONSTRUCTED CONSIDERING NORMAL WEATHER AND RIVER CYCLES AND ADDITIONAL CONCENTRATION OF RUN-OFF BY ADDED DITCHES, LEVIES, FARMING AND CLEARING. THE RULE IS WELL-ESTABLISHED AND LONG FOLLOWED BY THE GOVERNMENT ACCOUNTING OFFICES THAT IN THE EVENT OF A DISAGREEMENT BETWEEN THE FACTS AS STATED BY A CLAIMANT AND THOSE AS REPORTED BY THE ADMINISTRATIVE OFFICE CONCERNED, THE ADMINISTRATIVE REPORT MUST BE ACCEPTED AS CONTROLLING IN THE ABSENCE OF EVIDENCE SUFFICIENT TO OVERCOME THE PRESUMPTION OF THE CORRECTNESS OF OFFICIAL RECORDS AND DETERMINATIONS.
MOREOVER, THE ACCOUNTING OFFICERS ARE NOT IN A POSITION TO DETERMINE WHETHER OR NOT THE DAMAGES COMPLAINED OF WERE SUSTAINED, AND IF THEY WERE, THE EXTENT SUCH DAMAGES ARE CONTRIBUTABLE TO THE FEDERAL ACTIVITY. IT IS GENERALLY IMPRACTICABLE FOR THE ACCOUNTING OFFICERS TO DETERMINE WITH ACCURACY THE TRUE MERITS OF SUCH A CLAIM AS THE ONE MADE, SINCE TO DO SO WOULD REQUIRE THE TAKING OF SWORN TESTIMONY, THE CROSS-EXAMINATION OF WITNESSES, ETC., WHICH ARE NOT THE PROPER FUNCTIONS OF THIS OFFICE. VIEW THEREOF, AND SINCE THE CASES HERE ARE SETTLED SOLELY ON THE BASIS OF THE WRITTEN RECORD, CLAIMS FOR UNLIQUIDATED DAMAGES SUCH AS THE ONE PRESENTED, MUST BE LEFT FOR DETERMINATION BY THE COURTS IN THE ABSENCE OF DOCUMENTARY EVIDENCE ESTABLISHING BEYOND ANY REASONABLE DOUBT THAT THE AMOUNT CLAIMED REPRESENTS THE DAMAGES ACTUALLY SUFFERED.
ACCORDINGLY, OUR PREVIOUS ACTION IN THE MATTER IS SUSTAINED AND THE CLAIM OF THE KNOXILLE HUNTING CLUB IS AGAIN DISALLOWED.