B-148823, JUL. 24, 1962

B-148823 Jul 24, 1962
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RELATING FURTHER TO YOUR REQUEST FOR AN ADVANCE DECISION AS TO WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER IN FAVOR OF J. THE MATTER OF PAYMENT ON THE SUBJECT VOUCHER WAS SUBMITTED FOR OUR CONSIDERATION BY YOUR LETTER DATED APRIL 4. WE HELD THAT PAYMENT ON THE VOUCHER WAS NOT AUTHORIZED ON THE BASIS OF THE RECORD THEN BEFORE US. AN OFFER TO SELL EASEMENT ON THE INDICATED TRACTS WAS OBTAINED FROM MR. THAT THE OFFER TO SELL WAS ACCEPTED BY THE GOVERNMENT ON NOVEMBER 6. INFORMATION WAS RECEIVED THAT APPROXIMATELY 61 ACRES OF THE AREA HAD CAVED INTO THE ARKANSAS RIVER. IT WAS REPORTED THAT WHILE IT WAS NOT KNOWN WHEN THE CAVE-IN OCCURRED. HAD EXPRESSED THE OPINION THAT THE CAVE-IN COULD HAVE HAPPENED AT ANY TIME BETWEEN THE TIME THE ORIGINAL SURVEY WAS MADE IN OCTOBER 1961.

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B-148823, JUL. 24, 1962

TO MR. W. E. PILCHER, DISBURSING OFFICER, U.S. ARMY ENGINEER DISTRICT LITTLE ROCK, ARKANSAS:

BY FIRST ENDORSEMENT DATED JUNE 28, 1962 (ENGEC-FA), THE OFFICE OF THE CHIEF OF ENGINEERS, DEPARTMENT OF THE ARMY, TRANSMITTED HERE YOUR LETTER DATED JUNE 14, 1962 (SWLFE), WITH ENCLOSURES, RELATING FURTHER TO YOUR REQUEST FOR AN ADVANCE DECISION AS TO WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER IN FAVOR OF J. B. HARWOOD AND THENA HARWOOD IN THE AMOUNT OF $5,700, FOR AN EASEMENT TO CONSTRUCT AND MAINTAIN CHANNEL IMPROVEMENT WORKS OVER 142 ACRES, MORE OR LESS, DESIGNATED AS TRACTS 110E- 1 AND E-2, AND TEMPORARY ROAD RIGHT-OF-WAY EASEMENT OF 2.18 ACRES, MORE OR LESS, DESIGNATED AS TRACT 110E-3, SHOOFLY BEND CUTOFF, ARKANSAS RIVER.

THE MATTER OF PAYMENT ON THE SUBJECT VOUCHER WAS SUBMITTED FOR OUR CONSIDERATION BY YOUR LETTER DATED APRIL 4, 1962, AND FOR THE REASONS SET FORTH IN OUR DECISION DATED MAY 17, 1962, WE HELD THAT PAYMENT ON THE VOUCHER WAS NOT AUTHORIZED ON THE BASIS OF THE RECORD THEN BEFORE US. THE RECORD SUBMITTED WITH YOUR LETTER OF APRIL 4, 1962, SHOWED THAT UNDER DATE OF NOVEMBER 3, 1961, AN OFFER TO SELL EASEMENT ON THE INDICATED TRACTS WAS OBTAINED FROM MR. AND MRS. HARWOOD FOR A STATED CONSIDERATION OF $5,700, AND THAT THE OFFER TO SELL WAS ACCEPTED BY THE GOVERNMENT ON NOVEMBER 6, 1961.

THE RECORD INDICATED FURTHER THAT ON OR ABOUT JANUARY 15, 1962, INFORMATION WAS RECEIVED THAT APPROXIMATELY 61 ACRES OF THE AREA HAD CAVED INTO THE ARKANSAS RIVER. IT WAS REPORTED THAT WHILE IT WAS NOT KNOWN WHEN THE CAVE-IN OCCURRED, A MR. SHELTON, ARKANSAS RIVER BRANCH, ENGINEERING DIVISION, HAD EXPRESSED THE OPINION THAT THE CAVE-IN COULD HAVE HAPPENED AT ANY TIME BETWEEN THE TIME THE ORIGINAL SURVEY WAS MADE IN OCTOBER 1961, AND APPROXIMATELY JANUARY 15, 1962, WHEN A NEW SURVEY WAS MADE. IT WAS STATED FURTHER, HOWEVER, THAT MR. HARWOOD CONTENDED THE LAND WAS WASHED AWAY AFTER DECEMBER 26, 1961. ON THE BASIS THAT NO CONCRETE INFORMATION OR EVIDENCE HAD BEEN FURNISHED TO ESTABLISH WHEN THE CAVE-IN OCCURRED, WE ADVISED YOU THAT PAYMENT ON THE VOUCHER WAS NOT AUTHORIZED.

WITH YOUR LETTER OF JUNE 14, 1962, YOU ENCLOSED A STATEMENT DATED JUNE 6, 1962, BY MR. RAY L. BROGLEY, PROJECT ENGINEER, AND A STATEMENT DATED JUNE 7, 1962, BY MR. HARWOOD, BOTH RELATING TO THE TIME WHEN THE CAVE-IN OCCURRED. YOU REPORTED IN YOUR LETTER THAT ON THE BASIS OF THE EVIDENCE FURNISHED BY THESE STATEMENTS IT APPEARS THE CAVE-IN FIRST OCCURRED ON OR AFTER NOVEMBER 6, 1961. IT WAS STATED FURTHER THAT THE CAVING CONTINUED THROUGH THE MONTHS OF NOVEMBER AND DECEMBER 1961, AND INTO THE MONTH OF JANUARY 1962. THE STATEMENT BY MR. BROGLEY WAS TO THE EFFECT THAT THE CAVING OF THE RIGHT BANK OF THE ARKANSAS RIVER IN THE SHOOFLY BEND AREA WAS FIRST NOTED BY HIM SUBSEQUENT TO A RAPID RISE IN THE RIVER TO 22 FEET ON THE VAN BUREN GAGE ON NOVEMBER 6, 1961, IT BEING INDICATED THAT THE INSPECTION TOOK PLACE ON NOVEMBER 14, 1961. THE STATEMENT BY MR. HARWOOD WAS TO THE EFFECT THAT HE NOTED THE CAVING OF THE BANK AFTER THE HEAVY RISE OF THE RIVER ON NOVEMBER 6, 1961. ALSO, AS BEING PERTINENT TO THE QUESTION INVOLVED HEREIN, THERE HAS BEEN NOTED A STATEMENT DATED MARCH 1, 1962, BY MR. WILLIAM F. BALKE, REALTY OFFICER, IN PART AS FOLLOWS:

"MR. J. B. HARWOOD AND WIFE, THENA HARWOOD, EXECUTED AN OFFER TO SELL EASEMENT ON 3 NOVEMBER 1961, FOR THE AMOUNT OF $5,700 AND WAS ACCEPTED BY THE GOVERNMENT ON 6, NOVEMBER 1961. SINCE THE ACCEPTANCE OF THE OFFER BY THE GOVERNMENT, APPROXIMATELY 61 ACRES OF THE OWNER'S LAND HAS CAVED OFF INTO THE RIVER, MAKING IT NECESSARY TO OBTAIN AN EASEMENT AND RIGHT-OF-WAY OVER 19 ADDITIONAL ACRES. * * *"

IT IS OUR VIEW THAT THE EVIDENCE SUBMITTED WITH YOUR LETTER OF JUNE 14, 1962, IS INCONCLUSIVE INSOFAR AS ESTABLISHING THE EXACT DATE WHEN THE EROSION BEGAN. FOR THE MOST PART, THE STATEMENTS SUBMITTED SEEM TO REPRESENT LITTLE MORE THAN OPINIONS OR BELIEFS BY THE PARTIES AS TO WHEN THE DAMAGE OCCURRED; HOWEVER, THERE APPEARS TO BE NO FACTUAL BASIS FOR PLACING THE DATE OF COMMENCEMENT OF THE EROSION AT ANY TIME PRIOR TO NOVEMBER 6. ASSUMING THAT SOME SMALL PART OF THE EROSION MAY HAVE OCCURRED DURING THE DAY OF NOVEMBER 6, 1961, THE QUESTION ARISES WHETHER SUCH FACT WOULD SERVE TO RELIEVE THE GOVERNMENT FROM COMPLYING WITH THE OBLIGATION ARISING OUT OF THE ACCEPTED OFFER.

IN A DECISION DATED AUGUST 7, 1956, REPORTED AT 36 COMP. GEN. 90, OUR OFFICE POINTED OUT THAT THE DECISIONS OF THE COURTS FOLLOWING THE MAJORITY RULE HOLD THAT A CONTRACT FOR THE SALE OF REAL PROPERTY OPERATES AS AN EQUITABLE CONVERSION AND THAT IN CONTEMPLATION OF EQUITY THE VENDEE BECOMES THE REAL OWNER AND ASSUMES ALL THE RISK OF LOSS FOR DAMAGE TO OR DESTRUCTION OF THE PROPERTY NOT DUE TO NEGLECTOR DEFAULT OF THE VENDOR. SEE ALSO 37 COMP. GEN. 700. UNDER THE FOREGOING FACTS IT SEEMS NECESSARY TO DETERMINE THE EFFECTIVE DATE (AND HOUR) OF THE ACCEPTANCE.

IT IS A WELL-KNOWN RULE OF LAW THAT A DAY COMPRISES 24 HOURS, EXTENDING FROM MIDNIGHT TO MIDNIGHT, AND IT HAS BEEN OFTEN HELD THAT THE LAW DOES NOT TAKE NOTICE OF A PART OF DAY, UNLESS, OF COURSE, THE EXACT HOUR OF AN OCCURRENCE MUST BE ESTABLISHED TO PREVENT INJUSTICE, OR WHERE THE WORD "DAY" WAS USED AS A DIVISIBLE UNIT. IN THE CASE OF ERWIN V. BENTON, 87 S.W. 291, 294, IT WAS HELD THAT WHERE TIME IS AN ELEMENT OF A FACT, ITS BEGINNING IS DEEMED TO HAVE BEEN COINCIDENT WITH THE FIRST MOMENT OF THE DAY OF THE EVENT. FOR EXAMPLE, A CHILD BORN AT 11:59 P.M. ON A CERTAIN DAY IS DEEMED IN LAW TO HAVE BEEN BORN ON THE FIRST MOMENT OF THAT DAY. IN THE CASE OF DAVIS V. NATIONAL SECURITY LIFE AND CASUALTY INSURANCE COMPANY, 255 S.W.2D 576, 578, THE COURT HELD THAT A DAY IS 24 HOURS, NO MORE, NO LESS, AND IS AN INDIVISIBLE POINT OF TIME.

APPLYING THE RATIONALE OF THE FOREGOING DECISIONS TO THE FACTS OF THIS CASE, WE CONCLUDE THAT THE GOVERNMENT'S ACCEPTANCE ON NOVEMBER 6, 1961, WAS EFFECTIVE AS OF 12:01 A.M. OF THAT DAY AND THAT THE BENEFITS WHICH ACCRUED TO THE UNITED STATES BY VIRTUE OF THE SALE OF THE EASEMENT, AS WELL AS THE OBLIGATIONS IMPOSED THEREBY, BECAME VESTED AT THAT HOUR. FIND NO EVIDENCE IN THE RECORD WHICH WOULD SUPPORT A FINDING THAT ANY EROSION TOOK PLACE PRIOR TO THE EFFECTIVE DATE OF THE GOVERNMENT'S ACCEPTANCE. ACCORDINGLY, IT IS OUR VIEW THAT THE GOVERNMENT IS OBLIGATED TO MAKE PAYMENT IN THIS CASE IN ACCORDANCE WITH THE TERMS OF THE ACCEPTED OFFER. IN ANY EVENT, IT APPEARS THAT THE GOVERNMENT STILL REQUIRES AN EASEMENT OVER THE REMAINING LAND, AND IF THE AGREEMENT OF NOVEMBER 6, 1961, IS NOT ENFORCEABLE SUCH EASEMENT CAN BE ACQUIRED ONLY BY CONDEMNATION OR BY NEGOTIATIONS WITH THE OWNERS FOR A NEW AGREEMENT, WHICH MIGHT ULTIMATELY RESULT IN PAYMENT OF AT LEAST AS LARGE A PRICE AS THAT FIXED BY THE PRIOR AGREEMENT. THE VOUCHER TRANSMITTED WITH YOUR LETTER OF JUNE 14, 1962, IS RETURNED HEREWITH AND PAYMENT THEREON IS AUTHORIZED, IF OTHERWISE CORRECT.

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