B-87325, MAR 20, 1950

B-87325, MAR 20, 1950

PRECIS-UNAVAILABLE

COLONEL F. E. BARR, F.D., U.S. ARMY:

BY THIRD INDORSEMENT DATED FEBRUARY 27, 1950, FROM THE OFFICE OF THE CHIEF OF FINANCE (HIS FILE SCACF-EY 167/625951, CITY OF MINERAL WELLS, TEXAS,) THERE WAS RECEIVED YOUR SECOND INDORSEMENT OF FEBRUARY 8, 1950, RESUBMITTING THE VOUCHER PREVIOUSLY CONSIDERED IN DECISION OF JULY 11, 1949, B-87325, TO COLONEL J. W. FAULDS, TOGETHER WITH RELATED PAPERS, STATED IN FAVOR OF THE CITY OF MINERAL WELLS IN THE AMOUNT OF $2,850 AS A PAYMENT IN LIEU OF RESTORATION OF TRACTS NOS. 576-26 AND 576-27, AS PROVIDED FOR UNDER SUBLEASE NO. W-58-QM-576, DATED FEBRUARY 28, 1941, AS AMENDED BY SUPPLEMENTAL AGREEMENT NO. 10, DATED SEPTEMBER 25, 1947, AND REQUESTING A DECISION AS TO WHETHER PAYMENT ON SAID VOUCHER IS NOW AUTHORIZED.

THE FACTS LEADING UP TO THE EXECUTION OF THE AFORESAID SUPPLEMENTAL AGREEMENT, TOGETHER WITH THE REASONS WHY THIS OFFICE REFUSED TO AUTHORIZE PAYMENT ON THE INVOLVED VOUCHER WHEN ORIGINALLY SUBMITTED, ARE FULLY SET FORTH IN THE DECISION OF JULY 11, 1949, SUPRA, AND WILL NOT BE REPEATED HERE.

IN COMMUNICATION OF JANUARY 25, 1950, FROM THE OFFICE OF THE CHIEF OF ENGINEERS, IT IS STATED, IMPERTINENT PART, AS FOLLOWS:

"*** WHILE IT IS AGREED THAT AS A GENERAL PROPOSITION THE GOVERNMENT'S OBLIGATION FOR RESTORATION IS LIMITED TO DAMAGES IN EXCESS OF ORDINARY WEAR AND TEAR, AND WHILE THE GOVERNMENT HAS CERTAIN RIGHTS UNDER PARAGRAPH 8 OF THE LEASE TO ALTER THE PREMISES, IT IS SUBMITTED THAT THE GOVERNMENT ALSO HAD THE DUTY OF EITHER PERMITTING THE LESSOR, ITS AGENTS OR REPRESENTATIVES TO GO ON THE PREMISES FROM TIME TO TIME TO MAINTAIN AND REPAIR TERRACES, WELLS AND OTHER IMPROVEMENTS OF THE LAND OWNERS, OR ITSELF PERFORMING THE NECESSARY MAINTENANCE AND REPAIR OF THE PROPERTY. IN THIS CONNECTION, IT SHOULD BE NOTED THAT PARAGRAPH 2 OF THE LEASE BETWEEN DWIGHT D. TAYLOR, THE OWNER, AND THE CITY OF MINERAL WELLS, CONTAINS THIS PROVISION: AS A MOVING CONSIDERATION FOR THIS LEASE AND FOR THE PURPOSE OF PREVENTING SOIL EROSION, SAID CITY AGREES TO MAINTAIN IN GOOD CONDITION THE TERRACES AND WATER STOPPAGES IN DITCHES ON SAID LAND.' IT SHOULD ALSO BE NOTED THAT THIS LEASE DID NOT LIMIT THE GOVERNMENT'S OBLIGATION OF RESTORATION TO STRUCTURES, FIXTURES AND APPURTENANCES, AS THE SUB-LEASE FROM THE CITY TO THE GOVERNMENT APPEARS TO DO.SINCE THE SUB- LEASE COVERED THE ENTIRE TERM AND PREMISES DESCRIBED IN THE ORIGINAL LEASE BETWEEN DWIGHT D. TAYLOR AND THE CITY OF MINERAL WELLS, THE SUBSEQUENT TRANSACTION BETWEEN THE CITY AND THE GOVERNMENT CONSTITUTES AN ASSIGNMENT OF THE ORIGINAL LEASE AND THE GOVERNMENT IS LIABLE TO THE OWNER UNDER THE TERMS THEREOF. (36 C.J. 379)."

ALSO, THERE WERE FORWARDED WITH THE RESUBMISSION, APPRAISAL REPORTS DATED OCTOBER 7, 1949, CONCERNING TRACT 576-26, SHOWING THE ESTIMATED FEE VALUE OF THAT TRACT AS TO JANUARY 31, 1947, THE APPROXIMATE DATE OF SURRENDER OF THE PROPERTY TO THE OWNER, AS $2,200 IN ITS THEN EXISTING CONDITION AND ESTIMATING ITS VALUE OF JANUARY 31, 1947, IF RESTORED TO THE CONDITION EXISTING AT THE TIME OF INITIAL OCCUPANCY OF THE GOVERNMENT AS $2,500. ALSO, THERE WERE ENCLOSED APPRAISAL REPORTS DATED OCTOBER 11, 1949, PERTAINING TO TRACT 576-27, ESTIMATING THE FEE VALUE OF THAT TRACT ON JUNE 1, 1947-- THE APPROXIMATE DATE OF SURRENDER TO THE OWNER-- IN A RESTORED CONDITION AS $6,400 AS COMPARED TO AN ESTIMATED VALUE OF $3,700 IN ITS UNRESTORED CONDITION ON THE SAME DATE. THUS, IT IS INDICATED THAT THE VALUE OF THE TWO TRACTS HAS BEEN DAMAGED TO THE EXTENT OF $3,000 BY REASON OF THE GOVERNMENT'S FAILURE TO RESTORE THE LEASED PREMISES.

IN VIEW OF THE ADDITIONAL EVIDENCE SUBMITTED WHEN CONSIDERED IN THE LIGHT OF THE ABOVE-REFERRED-TO SPECIAL PROVISIONS OF THE LEASE AND THE GOVERNMENT'S DENIAL OF PERMISSION TO THE OWNERS AND THE GOVERNMENT'S LESSOR TO ENTER UPON THE PROPERTY AS PROVIDED UNDER SUCH SPECIAL PROVISIONS, PAYMENT OF THE VOUCHER IS NOW AUTHORIZED, IF OTHERWISE FREE FROM OBJECTION.

THE VOUCHER, TOGETHER WITH THE RELATED PAPERS, IS RETURNED HEREWITH.