B-27164, JULY 10, 1942, 22 COMP. GEN. 20

B-27164, JULY 10, 1942, 22 COMP. GEN. 20

ABSTRACTS OF TITLE - APPROPRIATION AVAILABILITY THE COST OF TITLE EVIDENCE ACQUIRED AFTER CONDEMNATION PROCEEDINGS HAVE BEEN INSTITUTED BY THE DEPARTMENT OF JUSTICE IN CONNECTION WITH THE ACQUISITION OF LAND FOR THE NAVY DEPARTMENT FOR PURPOSES AUTHORIZED IN SECTION 201 OF THE SECOND WAR POWERS ACT, 1942, MAY BE CHARGED TO THE NAVY DEPARTMENT APPROPRIATION AVAILABLE FOR ACQUIRING THE LAND, RATHER THAN TO DEPARTMENT OF JUSTICE APPROPRIATIONS, WHERE THE TITLE EVIDENCE IS PRIMARILY OR IN THE FIRST INSTANCE FOR USE BY THE NAVY DEPARTMENT, IN COOPERATION WITH THE DEPARTMENT OF JUSTICE, IN ATTEMPTING TO EFFECT SETTLEMENT WITH LAND OWNERS BY NEGOTIATION WITHOUT PROCEEDING TO JUDGMENT IN THE CONDEMNATION PROCEEDINGS.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, JULY 10, 1942:

I HAVE YOUR LETTER OF JULY 2, 1942 ( JAG:U:1ALO-B:NN), AS FOLLOWS:

TO FURTHER EXPEDITE THE PROSECUTION OF THE WAR THERE WAS ENACTED BY THE 77TH CONGRESS PUBLIC LAW NO. 507. THIS LAW WAS APPROVED MARCH 27, 1942. SECTION 2 (201) THEREOF READS IN PART AS FOLLOWS:

"THE SECRETARY OF WAR, THE SECRETARY OF THE NAVY, OR ANY OTHER OFFICER, BOARD, COMMISSION, OR GOVERNMENTAL CORPORATION AUTHORIZED BY THE PRESIDENT, MAY ACQUIRE BY PURCHASE, DONATION, OR OTHER MEANS OF TRANSFER, OR MAY CAUSE PROCEEDINGS TO BE INSTITUTED IN ANY COURT HAVING JURISDICTION OF SUCH PROCEEDINGS, TO ACQUIRE BY CONDEMNATION, ANY REAL PROPERTY, TEMPORARY USE THEREOF, OR OTHER INTEREST THEREIN, TOGETHER WITH ANY PERSONAL PROPERTY LOCATED THEREON OR USED THEREWITH, THAT SHALL BE DEEMED NECESSARY, FOR MILITARY, NAVAL, OR OTHER WAR PURPOSES, SUCH PROCEEDINGS TO BE IN ACCORDANCE WITH THE ACT OF AUGUST 1, 1888 (25 STAT. 357), OR ANY OTHER APPLICABLE FEDERAL STATUTE, * * *.'

THE ACQUISITION OF LANDS BY THE NAVY DEPARTMENT IN COMPLIANCE WITH THE ABOVE ACT REQUIRES THE PURCHASE OF PRELIMINARY CERTIFICATES OR ABSTRACTS OF TITLE IN ORDER THAT THE PROPER PERSONS WITH WHOM TO NEGOTIATE AND FROM WHOM TO OBTAIN OPTIONS AND DEEDS CAN BE ASCERTAINED. THIS TITLE EVIDENCE IS ORDERED UNDER CONTRACTS WITH LOCAL TITLE AND ABSTRACT COMPANIES.

UNDER AUTHORITY OF PREVIOUS DECISIONS OF YOUR OFFICE, THIS DEPARTMENT NOW PURCHASES TITLE EVIDENCE ON LANDS ACQUIRED BY DIRECT PURCHASE, EXCHANGE, DONATION, OR GIFT, BUT HAS NOT PURCHASED TITLE EVIDENCE IN CASES WHERE LAND IS ACQUIRED BY CONDEMNATION PURSUANT TO A DECLARATION OF TAKING (8 COMP. G. DEC. 308).

BY LETTER DATED JUNE 26, 1942, THE ATTORNEY GENERAL HAS REQUESTED THE NAVY DEPARTMENT TO PROCURE TITLE EVIDENCE UPON 68,666.89 ACRES OF LAND IN BINGHAM COUNTY, IDAHO. THIS LAND WAS TAKEN BY THE NAVY DEPARTMENT IN A CONDEMNATION PROCEEDING PURSUANT TO A DECLARATION OF TAKING FILED APRIL 29, 1942, IN THE UNITED STATES DISTRICT COURT FOR THE STATE OF IDAHO.

IN THE PROGRAM OF THE NAVY DEPARTMENT TO FURTHER EXPEDITE THE PROSECUTION OF THE WAR, REGULARLY EMPLOYED ATTORNEYS AND COMMISSIONED OFFICERS WORK JOINTLY WITH REPRESENTATIVES OF THE DEPARTMENT OF JUSTICE IN PROCURING SETTLEMENT AGREEMENTS AFTER CONDEMNATION PROCEEDINGS HAVE BEEN FILED. TITLE EVIDENCE IS NECESSARY TO THE NAVY DEPARTMENT AFTER THE DEPARTMENT OF JUSTICE HAS FILED A PETITION IN CONDEMNATION AS SUCH EVIDENCE IS USED BY THE ATTORNEYS OF THE NAVY DEPARTMENT IN DETERMINING WITH WHOM NEGOTIATIONS SHALL BE CONDUCTED.

IN VIEW OF THE REQUEST OF THE ATTORNEY GENERAL, IT BECOMES NECESSARY TO DETERMINE WHETHER THE NAVY DEPARTMENT APPROPRIATIONS FOR THE ACQUISITION OF LAND OR APPROPRIATIONS FOR THE CONTINGENCIES CONNECTED THEREWITH ARE AVAILABLE TO PAY FOR THE PURCHASE OF TITLE EVIDENCE AFTER CONDEMNATION HAS BEEN FILED BY THE DEPARTMENT OF JUSTICE PURSUANT TO THE DECLARATION OF TAKING PROCEDURE PROVIDED BY THE ACT OF FEBRUARY 26, 1931 (46 STAT. 1422), WHERE SUCH TITLE EVIDENCE PURCHASED IS FOR THE JOINT USE OF THE NAVY DEPARTMENT AND THE DEPARTMENT OF JUSTICE.

IN THE LIGHT OF THESE CONDITIONS, YOUR VIEWS ARE REQUESTED WITH RESPECT TO THE QUESTION SUBMITTED IN THE PRECEDING PARAGRAPH.

GENERALLY, THE COST OF PROCURING EVIDENCE OF TITLE FOR USE IN A PENDING LAND CONDEMNATION PROCEEDING IS REGARDED AS PART OF THE EXPENSES OF THE PROCEEDING AND, THEREFORE, IS FOR PAYMENT OUT OF THE APPROPRIATIONS OF THE DEPARTMENT OF JUSTICE. 8 COMP. GEN. 308.

IN 21 COMP. GEN. 744, 746, THE RULES APPLICABLE IN APPORTIONING THE COST OF EVIDENCE OF TITLE IN CONDEMNATION PROCEEDINGS BETWEEN THE ACQUIRING AGENCY AND THE DEPARTMENT OF JUSTICE ARE SUMMARIZED AS FOLLOWS:

IN THE DECISION OF DECEMBER 18, 1928, OF FORMER COMPTROLLER GENERAL MCCARL, 8 COMP. GEN. 308, CITED IN YOUR LETTER, THERE ARE DISCUSSED THREE DIFFERENT SITUATIONS UNDER WHICH ABSTRACTS OF TITLE MAY BE REQUIRED, AND THE APPROPRIATIONS CHARGEABLE IN EACH INSTANCE (1) WHERE THE ABSTRACTS ARE REQUIRED PRIOR TO THE INSTITUTION OF CONDEMNATION PROCEEDINGS; (2) WHEN THEY ARE REQUIRED INCIDENT TO AND AFTER THE CONDEMNATION PROCEEDINGS HAVE BEEN INSTITUTED; AND (3) WHEN REQUIRED AFTER THE TERMINATION OF THE CONDEMNATION PROCEEDINGS. WITH RESPECT TO (1) AND (3) THE DECISION HOLDS THAT THE APPROPRIATION AVAILABLE FOR THE ACQUISITION OF THE PROPERTY IS PROPERLY CHARGEABLE, BUT AS TO (2) IT WAS HELD THAT THE COST OF SUCH ABSTRACTS OF TITLE SHOULD BE CHARGED TO THE APPLICABLE APPROPRIATIONS OF THE DEPARTMENT OF JUSTICE.

WHILE THERE IS NOTHING IN PUBLIC LAW 507, 56 STAT. 177, QUOTED IN YOUR LETTER, AUTHORIZING THE HANDLING OF CONDEMNATION PROCEEDINGS JOINTLY BY THE DEPARTMENT OF JUSTICE AND THE NAVY DEPARTMENT, THE SAID LAW AUTHORIZES THE SECRETARY OF THE NAVY TO CAUSE PROCEEDINGS TO BE INSTITUTED FOR THE CONDEMNATION OF PROPERTY THAT SHALL BE DEEMED NECESSARY FOR NAVAL OR OTHER WAR PURPOSES; ALSO, IT IS STATED IN YOUR LETTER THAT IN THE PROGRAM OF THE NAVY DEPARTMENT TO FURTHER EXPEDITE THE PROSECUTION OF THE WAR, REGULARLY EMPLOYED ATTORNEYS OF THE NAVY DEPARTMENT AND COMMISSIONED OFFICERS OF THE NAVY WORK JOINTLY WITH REPRESENTATIVES OF THE DEPARTMENT OF JUSTICE IN PROCURING SETTLEMENT AGREEMENTS AFTER CONDEMNATION PROCEEDINGS HAVE BEEN FILED. IT IS STATED FURTHER THAT AFTER THE DEPARTMENT OF JUSTICE HAS FILED THE PETITION IN CONDEMNATION THE TITLE EVIDENCE IS NECESSARY FOR USE BY THE NAVY DEPARTMENT IN DETERMINING WITH WHOM NEGOTIATIONS SHOULD BE CONDUCTED.

IT IS CONCEIVABLE THAT IT MAY BE ADVISABLE EVEN AFTER THE DECLARATION OF TAKING HAS BEEN FILED UNDER THE PROCEDURE PROVIDED BY THE ACT OF FEBRUARY 26, 1931, CITED IN YOUR LETTER, TO NEGOTIATE WITH KNOWN OWNERS OF THE LAND WITH A VIEW TO EFFECTING FINAL SETTLEMENT WITHOUT PROCEEDING TO JUDGMENT IN CONDEMNATION PROCEEDINGS; AND, APPARENTLY, IT IS FOR THE PURPOSE OF ASCERTAINING THE OWNERS THAT THE EVIDENCE OF TITLE IS REQUIRED BY THE NAVY DEPARTMENT.

ACCORDINGLY, WITH THE UNDERSTANDING THAT THE EVIDENCE OF TITLE WHICH THE ATTORNEY GENERAL STATES IS REQUIRED IN CONNECTION WITH THE CONDEMNATION PROCEEDINGS IS EVIDENCE WHICH IS NECESSARY OR WILL BE UTILIZED PRIMARILY OR IN THE FIRST INSTANCE BY THE NAVY DEPARTMENT IN ATTEMPTING TO EFFECT SETTLEMENT BY NEGOTIATION, THIS OFFICE WILL NOT BE REQUIRED TO OBJECT TO THE USE OF THE APPROPRIATIONS OF THE NAVY DEPARTMENT AVAILABLE FOR THE ACQUISITION OF THE LAND TO PAY THE COST OF OBTAINING SUCH EVIDENCE OF TITLE; AND, OF COURSE, SUCH EVIDENCE WHEN SO OBTAINED MAY BE MADE AVAILABLE TO THE DEPARTMENT OF JUSTICE, ALSO, FOR ITS USE IN CONNECTION WITH THE CONDEMNATION PROCEEDINGS INVOLVING SUCH LAND.