B-171481, FEB 17, 1971

B-171481, FEB 17, 1971

DECLARATION OF TAKING - TENANT'S CLAIM FOR REIMBURSEMENT DECISION HOLDING THAT THE CLAIMS FILED BY JOHN MAYNARD REB, AS REPRESENTATIVE OF HIS DECEASED PARENTS, IN THE AMOUNTS OF $175 AND $100 WERE PROPERLY DISALLOWED. WHERE THE GOVERNMENT ACQUIRED A TRACT OF LAND BY A DECLARATION OF TAKING AND CLAIMANT'S PARENTS ENTERED INTO PRIVATE AGREEMENTS WITH THE ORIGINAL OWNER FOR PURCHASE OF CERTAIN BUILDINGS AND IMPROVEMENTS, WHICH WERE LATER DESTROYED, AND WITH THE CLEARING CONTRACTOR FOR THE RIGHT TO REMAIN ON THE PREMISES LONG ENOUGH TO REMOVE THE ABOVE MENTIONED BUILDINGS, ABSENT A SHOWING THAT CLAIMANT'S PARENTS HAD PRIVITY OF CONTRACT WITH THE GOVERNMENT, OR A RELATIONSHIP WITH IT AS PARTIES, BENEFICIARIES, OR INTERESTED PERSONS, NO GOVERNMENT LIABILITY CAN BE FOUND. FURTHER, THE ONLY RELATION THAT DID EXIST WAS ONE OF LANDLORD AND TENANT, AND IT WAS PROPER FOR THE GOVERNMENT TO CHARGE SOME RENT FOR THE PERIOD OF OCCUPANCY. THEREFORE THE CLAIMS ARE PROPERLY DISALLOWED.

TO MR. JOHN MAYNARD REB:

REFERENCE IS MADE TO YOUR LETTERS OF SEPTEMBER AND OCTOBER 1970, TAKING ISSUE WITH THE SETTLEMENT CERTIFICATE OF MARCH 3, 1970, ISSUED BY THE UNITED STATES GENERAL ACCOUNTING OFFICE. YOU APPARENTLY FEEL THAT THE GOVERNMENT IS MORALLY INDEBTED TO YOU, AS REPRESENTATIVE OF YOUR DECEASED PARENTS, UNDER THE FOLLOWING CIRCUMSTANCES.

BY DECLARATION OF TAKING FILED APRIL 21, 1959, THE GOVERNMENT ACQUIRED A TRACT OF LAND UPON WHICH YOU AND YOUR PARENTS RESIDED AS TENANTS. THE TRACT WAS TO BE CLEARED OF ALL IMPROVEMENTS. BECAUSE OF THIS SITUATION, YOUR PARENTS FIRST PAID THE SUM OF $175 TO ONE MR. GURTLER, THE OWNER OF THE TRACT, AS THE PURCHASE PRICE FOR CERTAIN BUILDINGS AND IMPROVEMENTS LOCATED THEREON, AND THEN PAID THE SUM OF $100 TO A REPRESENTATIVE OF THE CLEARING CONTRACTOR FOR THE RIGHT TO REMAIN UPON THE PREMISES LONG ENOUGH TO REMOVE THESE BUILDINGS AND IMPROVEMENTS. HOWEVER, SUCH REMOVAL WAS NOT COMPLETED IN THE ALLOTTED TIME, AND THE BUILDINGS WERE DEMOLISHED. SUBSEQUENTLY, THE GOVERNMENT ASSESSED RENT FOR YOUR PARENTS' TENANCY ON THE LAND IN THE TOTAL AMOUNT OF $72.92 FOR A PERIOD OF ALMOST SIX MONTHS DURING WHICH THE LAND WAS OWNED BY THE GOVERNMENT. YOU ASSERT THAT THE GOVERNMENT SHOULD REPAY TO YOU THE AFORESAID SUMS OF $175 AND $100 BECAUSE YOU DID NOT SUCCESSFULLY REMOVE THE BUILDINGS FOR WHICH THE SUMS WERE EXPENDED, AND THAT NO RENT WHATSOEVER SHOULD HAVE BEEN ASSESSED BECAUSE YOU WERE PROMISED BY MR. GURTLER'S ATTORNEY THAT YOUR FAMILY WOULD BE ALLOWED TO REMAIN UPON THE PREMISES INDEFINITELY AND FREE OF CHARGE.

NONE OF THE AGREEMENTS MADE WITH MR. GURTLER OR THE CLEARING CONTRACTOR INVOLVED THE GOVERNMENT IN ANY WAY. THERE IS NO INDICATION THAT THE GOVERNMENT ITSELF MADE ANY PROMISES WHATSOEVER EITHER TO YOUR PARENTS OR FOR THEIR BENEFIT. THESE AGREEMENTS WERE, SIMPLY, BETWEEN THE PARTIES INVOLVED AND, IF ANY SUCH PROMISES WERE BROKEN, ONLY THOSE WHO MADE THEM CAN BE HELD RESPONSIBLE. ABSENT ANY SHOWING THAT YOUR PARENTS HAD PRIVITY OF CONTRACT WITH THE GOVERNMENT, OR A RELATIONSHIP WITH IT AS PARTIES, BENEFICIARIES, OR INTERESTED PERSONS, NO GOVERNMENT LIABILITY CAN BE FOUND. SEE KELLOGG V UNITED STATES, 7 WALL. 361. WHEN AN ENFORCEABLE PROMISE IS BROKEN, COMPENSATION MAY ONLY BE SOUGHT FROM THE PARTY WHO ACTUALLY MADE THE PROMISE, OR SOMEHOW AGREED TO ABIDE BY IT. SEE CORBIN ON CONTRACTS, VOLUME 1, SECTION 124. SINCE THERE IS NO INDICATION THAT THE GOVERNMENT EVER WAS A PARTY TO THE SUBJECT AGREEMENTS, IT CANNOT BE REQUIRED TO COMPENSATE YOU FOR LOSSES RESULTING THEREFROM.

THE ONLY RELATIONSHIP WHICH DID EXIST BETWEEN YOUR PARENTS AND THE GOVERNMENT WAS THAT OF LANDLORD AND TENANT. YOU DO NOT QUESTION THE AMOUNT OF RENT CHARGED, BUT FEEL THAT NO RENT AT ALL SHOULD HAVE BEEN ASSESSED. THE GOVERNMENT CLEARLY OWNED THE LAND DURING THE PERIOD IN QUESTION. SINCE YOUR FAMILY LIVED THERE DURING THAT TIME, FAIRNESS DEMANDS THAT SOME RENT SHOULD HAVE BEEN PAID TO THE OWNER. YOUR ALLEGATION CONCERNING THE PROMISE OF MR. GURTLER'S ATTORNEY MAY WELL BE TRUE. HOWEVER, AS EXPLAINED ABOVE, THE GOVERNMENT WAS IN NO WAY RELATED TO, OR RESPONSIBLE FOR, THE MAKING OF SUCH A PROMISE, AND MAY NOT THEREBY BE PRECLUDED FROM RECEIVING RENT PAYMENTS RIGHTFULLY DUE AND OWING.

FOR THE ABOVE REASONS, YOUR CLAIMS WERE PROPERLY DISALLOWED.