B-150914, JUL. 2, 1963

B-150914, JUL. 2, 1963

TO MR. W. E. MOORE:

WE REFER TO YOUR LETTER DATED FEBRUARY 15, 1963, REQUESTING A RECONSIDERATION OF OUR CLAIMS SETTLEMENT DATED JANUARY 24, 1963, WHICH DISALLOWED YOUR CLAIM FOR $104.00, AS RENT ON A CERTAIN PARCEL OF LAND FOR THE PERIOD MARCH, 1958, TO APRIL 30, 1960.

THE RECORD SHOWS THAT YOU LEASED TO THE GOVERNMENT (BUREAU OF PRISONS) A PARCEL OF LAND OF ABOUT 3.3 ACRES SITUATED ON STAMPING CREEK IN LITTLE LEVELS DISTRICT, POCAHONTAS COUNTY, WEST VIRGINIA, FOR THE PERIOD MARCH 24, 1957, TO MARCH 23, 1958. THE LAND WAS USED BY THE FEDERAL MILL POINT PRISON CAMP, LOCATED NEARBY, FOR THE OPERATION OF A STONE QUARRY, AND UNDER THE TERMS OF THIS LEASE YOU WERE TO RECEIVE FOR THE USE OF THE PREMISES 25 CUBIC YARDS OF CRUSHED STONE VALUED AT $2.00 PER CUBIC YARD, PLUS 2 1/2 CENTS PER CUBIC YARD FOR ALL CRUSHED STONE REMOVED DURING THE CONTRACT PERIOD BY THE GOVERNMENT IN EXCESS OF 2,000 CUBIC YARDS. IT IS REPORTED THAT AT THE END OF THE LEASE PERIOD, THE BUREAU OF PRISONS DID NOT SEEK TO RENEW THE LEASE AND, THEREAFTER, AS OF JULY 31, 1959, THE BUREAU OFFICIALLY WITHDREW FROM THE PRISON CAMP, WHICH WAS LOCATED ON LAND INCLUDED IN THE MONONGAHELA NATIONAL FOREST, AND THE FOREST SERVICE THEN ASSUMED CUSTODY FOR THE CARE AND DISPOSAL OF THE CAMP PROPERTY. INCLUDED IN THIS PROPERTY WAS A ROCK CRUSHER WHICH HAD BEEN USED IN THE QUARRY OPERATIONS AND WHICH REMAINED ON YOUR LAND AFTER THE TERMINATION OF THE LEASE PERIOD. ON JANUARY 29, 1960, THE FOREST SERVICE ISSUED A SALES INVITATION COVERING THIS ROCK CRUSHER, AND ON FEBRUARY 10, 1960, AWARD WAS MADE TO R. H. BURNS COMPANY (IT IS REPORTED THAT YOU ALSO SUBMITTED A BID UNDER THIS INVITATION) AT A BID PRICE OF $509. PURSUANT TO THE AWARD, R. H. BURNS REMOVED THE MACHINE FROM YOUR LAND- - APPARENTLY ON OR ABOUT APRIL 30, 1960.

YOU STATE THAT MR. E. M. OLIVER OF THE UNITED STATES FOREST SERVICE, AND THE SUPERINTENDENT OF THE FEDERAL PRISON CAMP AT MILL POINT, BOTH INFORMED YOU, AT DIFFERENT TIMES (BEFORE AND AFTER THE CAMP CLOSED), THAT YOU WOULD BE PAID RENT IF YOU PERMITTED THE CRUSHER TO REMAIN ON YOUR LAND. HOWEVER, BOTH THE FOREST SERVICE AND THE BUREAU OF PRISONS DENY THAT ANY SUCH REPRESENTATIONS WERE MADE TO YOU.

YOU CLAIM RENT FOR THE PERIOD THAT THE CRUSHER REMAINED ON YOUR LAND, AT THE MINIMUM LEASE RATE OF $50.00 PER YEAR, OR A TOTAL OF $104.00 FOR THE 25 MONTHS.

THE ONLY LEGAL THEORY UNDER WHICH THE GOVERNMENT COULD BE CONSIDERED TO BE LIABLE FOR RENT IN THIS SITUATION WOULD BE THAT THE FAILURE TO REMOVE THE ROCK CRUSHER FROM THE LEASED LAND AMOUNTED TO A HOLDING OVER, WHICH IS DEFINED AS THE ACT OF KEEPING POSSESSION OF THE PREMISES AFTER THE EXPIRATION OF THE LEASE TERM. SEE 51 C.J.S., LANDLORD AND TENANT, PAR. 75. LEAVING PROPERTY ON THE PREMISES MAY, BUT DOES NOT ALWAYS, CONSTITUTE A HOLDING OVER. 35 C.J.P. 1033 N. 4. WHETHER IT DOES OR DOES NOT IS USUALLY A QUESTION OF FACT TO BE DETERMINED IN THE LIGHT OF ALL THE SURROUNDING CIRCUMSTANCES. HUFF V. NORTHERN PACIFIC RY. CO., 228 P.2D. 121, 125. IN THIS CASE, THE GOVERNMENT CEASED ITS STONE QUARRY OPERATIONS AT THE TERMINATION OF THE LEASE AND WITHDREW COMPLETELY EXCEPT FOR THE ROCK CRUSHER, WHICH WAS LEFT STANDING ON THE 3.3 ACRES OF LAND. IT DOES NOT SEEM TO US THAT THIS CONSTITUTES, UNDER LAW, A HOLDING OVER ON THE LAND. ALSO, IT IS HELD THAT IF THE LANDLORD REENTERS HIS PREMISES AFTER A HOLDING OVER BEGINS, THE LEASE IS TERMINATED. SEE 51 C.J.S., LANDLORD AND TENANT, PAR. 75. IT IS NOT CLEAR FROM THE RECORD WHETHER YOU RETOOK POSSESSION OF YOUR LAND AFTER THE WRITTEN LEASE EXPIRED, BUT IT APPEARS LIKELY THAT YOU DID SO. IN ANY EVENT, WE CONCLUDE THAT THE GOVERNMENT CEASED TO BE A TENANT ON YOUR LAND AFTER MARCH, 1958, WHEN THE LEASE EXPIRED. ACCORDINGLY, YOUR CLAIM FOR RENT UNDER THE TERMS OF THE LEASE FOR ANY PERIOD AFTER MARCH, 1958, IS DENIED.

HOWEVER, WE BELIEVE THAT YOUR CLAIM MAY BE CONSIDERED ON THE PRINCIPLE THAT IN THE ABSENCE OF ANY AGREEMENT, A LANDLORD IS ENTITLED TO A REASONABLE COMPENSATION FOR STORING CHATTELS LEFT BY AN OUTGOING TENANT. SEE PRESTON V. NEALE, 78 MASS. (12 GRAY) 222 (1858).

WHILE WE CANNOT SAY IN THIS CASE THAT THE CRUSHER REMAINED ON YOUR LAND WITHOUT YOUR PERMISSION, IT DOES NOT APPEAR THAT YOU AGREED TO KEEP IT ON YOUR LAND FREE OF CHARGE. SINCE WE FIND THAT NO AGREEMENT WAS REACHED AS TO THE TERMS OF THE STORAGE, WE CONCLUDE THAT YOU ARE ENTITLED TO REASONABLE COMPENSATION IN THE NATURE OF STORAGE CHARGES FOR THE PERIOD THAT THE ROCK CRUSHER REMAINED ON YOUR LAND AFTER THE LEASE EXPIRED.

THE ADMINISTRATIVE AUTHORITY (BUREAU OF PRISONS) ADVISES THAT IT CONSIDERS A STORAGE RATE OF $2.00 PER MONTH FOR THE 25 MONTHS TO BE FAIR AND PROPER IN THIS CASE. WE ARE THEREFORE DIRECTING ISSUANCE OF A SETTLEMENT IN YOUR FAVOR IN THE AMOUNT OF $50.00 AS FULL AND FINAL SETTLEMENT OF YOUR CLAIM.