B-157993, DEC. 14, 1965

B-157993, DEC. 14, 1965

TO MRS. FLOY J. COMBS:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 30, 1965, IN EFFECT REQUESTING REVIEW OF SETTLEMENT OF SEPTEMBER 15, 1965, DISALLOWING $1,086.11 OF THE CLAIM FILED BY YOU AND MR. COMBS AND MR. J. R. RICE FOR $1,753.15 AS DAMAGES RESULTING FROM GOVERNMENT USE UNDER RIGHT-OF ENTRY AGREEMENTS OF CERTAIN FARM LAND OWNED BY YOU AND MR. COMBS.

THE RECORD SHOWS THAT UNDER TWO RIGHT-OF-ENTRY AGREEMENTS DATED DECEMBER 27, 1961, AND MAY 7, 1963, YOU GRANTED THE UNITED STATES GOVERNMENT AN IRREVOCABLE RIGHT TO ENTER ON AND USE YOUR LAND, AS DESCRIBED IN THE AGREEMENTS, FOR THE PURPOSE OF CONSTRUCTING AN AIR FORCE FACILITY. DURING THE PERIOD FROM MAY 2, 1962, UNTIL FEBRUARY 19, 1964, THE GOVERNMENT OCCUPIED AND USED 2.64 ACRES OF THE LAND AS A TEMPORARY WORK AREA WHICH PREVENTED THE AREA FROM BEING FARMED DURING THAT PERIOD. ALSO, THE RECORD SHOWS THAT WHEN THE AREA WAS RETURNED TO YOU IT WAS COVERED WITH A LAYER OF CLAY SOIL MIXED WITH ROCKS OF VARIOUS SIZES.

UNDER THE AFOREMENTIONED RIGHT-OF-ENTRY AGREEMENTS, THE GOVERNMENT AGREED TO MAKE A REASONABLE RESTORATION OF THE TEMPORARY WORK AREA AND FURTHER AGREED TO BE RESPONSIBLE FOR LOSS OR DAMAGES RESULTING DIRECTLY FROM THE ACTIVITY OF THE GOVERNMENT, ITS CONTRACTORS, OR OTHER AGENTS IN THE EXERCISE OF RIGHTS UNDER THE AGREEMENTS, INCLUDING REMAINING DAMAGE TO THE TEMPORARY WORK AREA. YOUR CLAIM WAS FILED ON NOVEMBER 16, 1964, FOR REMAINING DAMAGE TO THE WORK AREA, IN THE AMOUNT OF $1,000, BECAUSE OF THE LAYER OF CLAY AND ROCKS COVERING THE AREA AND, FOR LOSS OF USE OF THE AREA WHICH RESULTED IN A CROP LOSS IN 1962, 1963, AND 1964 IN THE AMOUNT OF $753.15.

THE RECORD SHOWS THAT THE CORPS OF ENGINEERS HAD AN APPRAISAL OF THE DAMAGES MADE BY A QUALIFIED APPRAISER. REGARDING THE CLAIM FOR REMAINING DAMAGE TO THE 2.64 ACRE AREA CAUSED BY GOVERNMENT OPERATIONS, THE AMOUNT OF $453.25 WAS CONSIDERED TO BE ADEQUATE FOR CORRECTING A DRAINAGE CONDITION, PICKING UP ROCK, AND RESTORING THE AREA TO ITS FORMER UTILITY AND VALUE. REGARDING THE CLAIM FOR LOSS OF USE OF THE AREA, THE AMOUNT OF $213.79 WAS CONSIDERED TO BE ADEQUATE TO COVER THE CROPS LOSS FOR CROP YEARS 1962 AND 1963. IN VIEW OF THE FACT THAT THE AREA WAS RETURNED TO YOU ON FEBRUARY 19, 1964, IN TIME FOR THE LAND TO BE RESTORED BEFORE THE 1964 CROP YEAR, NO AMOUNT WAS ALLOWED FOR THE CROP YEAR OF 1964. THEREFORE, IT WAS CONCLUDED THAT THE GOVERNMENT WAS LIABLE IN THE AMOUNT OF $667.04 FOR DAMAGES RESULTING FROM ITS OCCUPATION AND USE OF THE 2.64 ACRES OF LAND AS A TEMPORARY WORK AREA.

THE RECORD SHOWS THAT THE CORPS OF ENGINEERS OFFER OF $667 IN FULL SETTLEMENT OF YOUR CLAIM OF NOVEMBER 16, 1964, WAS REJECTED, APPARENTLY BECAUSE YOU FELT THAT THE AMOUNT WAS INADEQUATE. IN YOUR LETTER OF OCTOBER 30, 1965, YOU STATE THAT YOU CANNOT ACCEPT THE CHECK IN THE AMOUNT OF $667.04 THAT ACCOMPANIED THE SETTLEMENT OF SEPTEMBER 15, 1965, AND ADVISE THAT WHILE THAT AMOUNT WOULD COVER THE CROP LOSS, AN ADDITIONAL AMOUNT IS NECESSARY TO PAY TO HAVE THE ROCK REMOVED. HOWEVER, OTHER THAN CONTENDING THAT THE AMOUNT OF $667.04 IS INADEQUATE TO COVER YOUR DAMAGES, IT DOES NOT APPEAR FROM THE RECORD THAT YOU HAVE SUBMITTED ANY DATA THAT REFUTES THE ACCURACY OF THE CROPS OF ENGINEERS DETAILED APPRAISAL.

THE EXTENT AND AMOUNT OF ACTUAL DAMAGES SUFFERED BY YOU ARE QUESTIONS OF FACT, AND THIS OFFICE, OF COURSE, HAS NO FIRSTHAND KNOWLEDGE OF THE FACTUAL MATTERS INVOLVED IN THE CASE. WHERE, AS HERE, THE FACTS INCIDENT TO A CLAIM AGAINST THE UNITED STATES ARE IN DISPUTE, IT IS THE LONG- ESTABLISHED RULE OF OUR OFFICE TO ACCEPT THE FACTS ADMINISTRATIVELY REPORTED AS CONTROLLING THE DISPOSITION OF THE CLAIM IN THE ABSENCE OF EVIDENCE LEGALLY SUFFICIENT TO OVERCOME THE PRESUMPTION OF THEIR CORRECTNESS.

ACCORDINGLY, THE SETTLEMENT OF SEPTEMBER 15, 1965, IS SUSTAINED.

IN YOUR LETTER OF OCTOBER 30, 1965, YOU STATE THAT YOUR TENANT HAS REFUSED TO ENDORSE THE CHECK THAT ACCOMPANIED THE SETTLEMENT OF SEPTEMBER 15, 1965, AND REQUEST INFORMATION AS TO WHERE TO RETURN THE CHECK. YOU ARE ADVISED THAT, SO FAR AS OUR OFFICE IS CONCERNED, THE CHECK MAY BE DEPOSITED OR CASHED WITHOUT PREJUDICE TO YOUR RIGHT TO FURTHER CONSIDERATION OF THE MATTER. HOWEVER, IF YOU WISH, THE CHECK MAY BE RETURNED TO OUR OFFICE IN WASHINGTON, D.C. ..END :