B-155052, SEPTEMBER 23, 1964, 44 COMP. GEN. 165

B-155052, SEPTEMBER 23, 1964, 44 COMP. GEN. 165

EASEMENTS, RIGHTS OF WAY, ETC. - CREATION, EXISTENCE, AND TERMINATION - IMPROVEMENTS ON LANDS RESERVED TO THE UNITED STATES IN THE ACQUISITION OF LAND FOR THE NEW RIGHT-OF-WAY NECESSARY TO RELOCATE A PORTION OF THE ALASKA RAILROAD, PAYMENT MAY NOT BE MADE WITHOUT CONGRESSIONAL APPROVAL FOR THE HOMES AND OTHER STRUCTURES AND IMPROVEMENTS LOCATED ON LANDS PATENTED SUBSEQUENT TO THE ACT OF MARCH 12, 1914, RESERVING TO THE UNITED STATES A RIGHT-OF-WAY FOR THE CONSTRUCTION OF RAILROADS, AND TELEGRAPH AND TELEPHONE LINES, PAYMENT OF COMPENSATION FOR THE TAKING OF THE LAND BEING PRECLUDED BY SECTION 1 OF THE ACT (48 U.S.C. 305), AND NOTHING IN THE LEGISLATIVE HISTORY OF THE SECTION INDICATING THE LANDOWNER WAS TO BE COMPENSATED FOR IMPROVEMENTS LOCATED ON THE RESERVED RIGHT-OF-WAY WITHOUT CONGRESSIONAL AUTHORIZATION.

TO THE SECRETARY OF THE INTERIOR, SEPTEMBER 23, 1964:

REFERENCE IS MADE TO LETTER OF AUGUST 24, 1964, FROM ASSISTANT SECRETARY OF THE INTERIOR D. OTIS BEASLEY, REGARDING CERTAIN MATTERS ARISING IN CONNECTION WITH RELOCATING A PORTION OF THE ALASKA RAILROAD RIGHT-OF-WAY.

IT IS STATED THAT AS A RESULT OF THE MARCH 27, 1964, EARTHQUAKE, IT APPARENTLY WILL BE NECESSARY TO RELOCATE A PORTION OF THE ALASKA RAILROAD RIGHT-OF-WAY. THE NEW RIGHT-OF-WAY INVOLVES LAND THAT WAS PATENTED AFTER MARCH 12, 1914. THE ASSISTANT SECRETARY STATES THAT, IN THE OPINION OF YOUR DEPARTMENT, LANGUAGE CONTAINED IN SECTION 1 OF THE ACT OF MARCH 12, 1914, CH. 37, 38 STAT. 305, 48 U.S.C. 305, PRECLUDES PAYMENT OF COMPENSATION FOR THE TAKING OF LAND FOR THE NEW RIGHT-OF-WAY PATENTED AFTER MARCH 12, 1914. HOWEVER, HE STATES THAT IT IS LESS CLEAR TO YOUR DEPARTMENT WHETHER PAYMENT MAY BE MADE FOR HOMES AND OTHER STRUCTURES AND IMPROVEMENTS WHICH MAY BE LOCATED ON SUCH LAND. OUR DECISION IS REQUESTED AS TO WHETHER PAYMENT MAY BE MADE FOR SUCH HOMES, STRUCTURES, AND IMPROVEMENTS. ALSO, IF IT IS DECIDED THAT SUCH PAYMENTS MAY BE MADE, OUR DECISION IS REQUESTED AS TO WHETHER SUCH PAYMENT SHOULD BE BASED UPON PRE- EARTHQUAKE OR POST EARTHQUAKE APPRAISALS OF THE HOMES AND OTHER STRUCTURES AND IMPROVEMENTS.

SECTION 305 OF TITLE 48, U.S.C. SUPRA, PROVIDES AS FOLLOWS:

IN ALL PATENTS FOR LANDS TAKEN UP, ENTERED, OR LOCATED IN ALASKA AFTER MARCH 12, 1914, THERE SHALL BE EXPRESSED THAT THERE IS RESERVED TO THE UNITED STATES A RIGHT OF WAY FOR THE CONSTRUCTION OF RAILROADS, TELEGRAPH AND TELEPHONE LINES TO THE EXTENT OF ONE HUNDRED FEET ON EITHER SIDE OF THE CENTER LINE OF ANY SUCH ROAD AND TWENTY-FIVE FEET ON EITHER SIDE OF THE CENTER LINE OF ANY SUCH TELEGRAPH OR TELEPHONE LINES.

THE ABOVE-QUOTED LANGUAGE IS SIMILAR TO THE PROVISION OF THE ACT OF AUGUST 30, 1890, CH. 837, 26 STAT. 371, 391, 43 U.S.C. 945, WHICH RESERVES RIGHTS-OF-WAY TO THE UNITED STATES FOR DITCHES AND CANALS CONSTRUCTED BY AUTHORITY OF THE UNITED STATES OVER LANDS WEST OF THE ONE-HUNDREDTH MERIDIAN PATENTED SUBSEQUENT TO THE PASSAGE OF THE ACT. WE NOTE THAT IN COMMENTING ON THIS PROVISION OF THE ACT OF AUGUST 30, 1890, IN HIS LETTER OF SEPTEMBER 23, 1963, TO THE SPEAKER OF THE HOUSE OF REPRESENTATIVES, CONCERNING A PROPOSED BILL WHICH LED TO THE ENACTMENT OF PUBLIC LAW 88- 561, APPROVED SEPTEMBER 2, 1964, 78 STAT. 808, ASSISTANT SECRETARY OF THE INTERIOR KENNETH HOLUM STATED THAT OWNERS OF LAND WEST OF THE ONE- HUNDREDTH MERIDIAN WHOSE TITLE DERIVES FROM A PATENT ISSUED SUBSEQUENT TO AUGUST 30, 1890, ARE COMPENSATED FOR IMPROVEMENTS OR CROPS THAT ARE DAMAGED OR DESTROYED WHEN A RECLAMATION CANAL CROSSES THEIR PROPERTY. SEE H.REPT. NO. 922, 88TH CONG., 1ST SESS. 5. WE HAVE BEEN INFORMALLY ADVISED BY A MEMBER OF YOUR STAFF THAT THE AUTHORITY FOR SUCH PAYMENTS IS BASED ON AN OPINION DATED APRIL 24, 1919, PUBLISHED IN VOLUME 47 OF DECISIONS RELATING TO THE PUBLIC LANDS, 47 L.D. 158, 160, IN WHICH SECRETARY OF THE INTERIOR FISHER'S INSTRUCTIONS OF NOVEMBER 9, 1912, WERE QUOTED, IN PERTINENT PART, AS FOLLOWS:

* * * I AM OF THE OPINION THAT I WOULD NOT BE JUSTIFIED IN AUTHORIZING THE EXPENDITURE OF ANY PUBLIC MONEY FOR LAND DAMAGES TO THESE ENTRYMEN RESULTING FROM THE CONSTRUCTION OF SUCH CANAL. BUT IT DOES NOT SEEM TO BE THE INTENT OF THE STATUTE TO CONFISCATE THE ACTUAL VALUE OF IMPROVEMENTS ON LANDS SUBJECT TO SUCH A RESERVED RIGHT OF WAY.

SUBSEQUENTLY, IN COMMENTING ON THE AFOREMENTIONED OPINION IN 53 I.D. 399 AT PAGE 404, THE SOLICITOR OF THE DEPARTMENT ADVISED THE SECRETARY OF THE INTERIOR, IN PERTINENT PART, AS FOLLOWS:

* * * A RIGHT OF WAY RESERVED UNDER THE ACT OF AUGUST 30, 1890, * * * IS SUFFICIENT, IF STRICTLY CONSTRUED, TO PREVENT THE RECOVERY OF ANY SUM OF MONEY FOR IMPROVEMENTS UPON THE RIGHT OF WAY REQUIRED FOR THE CONSTRUCTION OF IRRIGATION WORKS.

IT HAS NOT BEEN THE POLICY OF THE DEPARTMENT TO ADHERE STRICTLY TO THE LEGAL POSSIBILITIES, AND IT HAS BEEN DECIDED IN AN OPINION OF APRIL 24, 1919 (47 L.D. 158), THAT THE LANDOWNER MAY BE COMPENSATED FOR THE ACTUAL VALUE OF HIS IMPROVEMENTS ON THE RIGHT OF WAY, * * *.

IN CONSTRUING THE ACT OF AUGUST 30, 1890, WE HELD IN 7 COMP. GEN. 217, QUOTING FROM THE SYLLABUS, AS FOLLOWS:

THERE IS NO AUTHORITY FOR THE ASSUMPTION BY THE UNITED STATES OF ONE-HALF THE COST OF REMOVING AND REPLACING A HIGH-POWERED TRANSMISSION LINE FROM ACROSS A RIGHT OF WAY RESERVED TO THE UNITED STATES, UNDER THE PROVISIONS OF THE ACT OF AUGUST 30, 1890, 26 STAT. 391, WHERE SUCH LINE INTERFERED WITH THE CONSTRUCTION OF A PART OF AN IRRIGATION SYSTEM.

WE FIND NOTHING IN THE LEGISLATIVE HISTORY OF SECTION 305 OF TITLE 48, WHICH WOULD SUPPORT A CONSTRUCTION SIMILAR TO THAT PLACED UPON THE ACT OF AUGUST 30, 1890, BY THE SECRETARY OF THE INTERIOR IN HIS INSTRUCTIONS OF NOVEMBER 9, 1912. IN EXPLAINING THE LANGUAGE NOW CONTAINED IN SECTION 305 TO THE HOUSE OF REPRESENTATIVES, CONGRESSMAN HOUSTON STATED AS FOLLOWS:

IT WAS ALSO PROVIDED THAT PATENTS ISSUED ON PUBLIC LAND HEREAFTER SHOULD CONTAIN A CLAUSE STIPULATING THAT THE RIGHT OF WAY WAS RESERVED TO THE GOVERNMENT TO RETAIN RIGHT OF WAY, SO AS TO PREVENT ANY DELAY OR HINDRANCE IN ACQUIRING RIGHTS OF WAY. SEE 51 CONG.REC. 4449.

THERE IS NO INDICATION THAT SUCH RIGHT-OF-WAY, RESERVED UNDER THIS ACT TO THE GOVERNMENT, SHOULD NOT BE STRICTLY CONSTRUED.

WE NOTE THAT THE ACT OF JULY 24, 1947, CH. 313, 61 STAT. 413, 48 U.S.C. 321D (1958 ED.) CONTAINS A PROVISION SIMILAR TO THAT SET FORTH IN SECTION 305 OF TITLE 48. THE ACT OF JULY 24, 1947, RESERVED A RIGHT-OF-WAY TO THE UNITED STATES FOR ROADS AND ROADWAYS IN ALL PATENTS FOR LANDS TAKEN UP IN THE TERRITORY OF ALASKA AFTER PASSAGE OF THE ACT. HOWEVER, CONGRESS DEALT WITH THE MATTER OF PAYING FOR CROPS AND IMPROVEMENTS WHICH MIGHT BE LOCATED ON SUCH RIGHTS-OF-WAY BY SPECIFICALLY AUTHORIZING THE HEAD OF THE AGENCY UTILIZING THE RESERVED RIGHT-OF-WAY TO PAY FOR CROPS AND IMPROVEMENTS LOCATED THEREON.

THEREFORE, IT IS OUR VIEW THAT SINCE THERE IS NOTHING IN THE LEGISLATIVE HISTORY OF SECTION 305 OF TITLE 48G INDICATING THAT THE LANDOWNER WAS TO BE COMPENSATED FOR IMPROVEMENTS LOCATED ON THE RESERVED RIGHT-OF-WAY, AND, SINCE CONGRESS CAN SPECIFICALLY AUTHORIZE PAYMENT FOR CROPS AND IMPROVEMENTS LOCATED ON A RESERVED RIGHT-OF-WAY AS IT DID IN THE ACT OF JULY 24, 1947, PAYMENT BY YOUR DEPARTMENT FOR HOMES AND OTHER STRUCTURES AND IMPROVEMENTS LOCATED ON A RIGHT-OF-WAY RESERVED UNDER SECTION 305 OF TITLE 48, MAY NOT BE MADE WITHOUT CONGRESSIONAL AUTHORIZATION.

IN VIEW OF OUR ANSWER TO THE FIRST QUESTION NO ANSWER TO THE SECOND QUESTION IS REQUIRED.