B-149822, SEPTEMBER 24, 1962, 42 COMP. GEN. 177

B-149822, SEPTEMBER 24, 1962, 42 COMP. GEN. 177

PUBLIC LANDS - PERMITTEES, ETC., RIGHTS - RELOCATION COSTS - GOVERNMENT LIABILITY A PERMIT GRANTED TO A POWER COMPANY TO CONSTRUCT A TRANSMISSION LINE OVER GOVERNMENT PROPERTY WHICH REQUIRES THE PERMITTEE UPON REQUEST OF THE GOVERNMENT AND WITHOUT COST TO THE GOVERNMENT TO RELOCATE ANY LINES INCLUDING AN EXISTING LINE ON PROPERTY ON WHICH THE PERMITTEE HAD PREVIOUSLY BEEN GRANTED AN EASEMENT BY A PRIOR OWNER BEFORE THE GOVERNMENT ACQUIRED THE PROPERTY PREVAILS OVER THE RIGHTS UNDER THE EASEMENT TO THE EXTENT OF ANY CONFLICT BETWEEN THE TWO INSTRUMENTS, THE PERMIT BEING LATER IN POINT OF TIME; THEREFORE, COSTS OF RELOCATING THE LINES AT THE REQUEST OF THE GOVERNMENT ARE AN OBLIGATION OF THE COMPANY UNDER THE PERMIT AND REIMBURSEMENT BY THE GOVERNMENT IS NOT AUTHORIZED.

TO J. M. CARPENTER, DEPARTMENT OF THE INTERIOR, SEPTEMBER 24, 1962:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 28, 1962, REQUESTING A DECISION AS TO WHETHER YOU MAY CERTIFY FOR PAYMENT A VOUCHER TRANSMITTED THEREWITH IN FAVOR OF GARKANE POWER ASSOCIATION, C., RICHFIELD, UTAH, FOR REIMBURSEMENT OF $598.46 REPRESENTING THE EXPENSE OF RELOCATING CERTAIN TRANSMISSION POWER LINES WITH THE CAPITOL REEF NATIONAL MONUMENT, UTAH, DURING JANUARY 1962.

THE RECORD IN SUPPORT OF THE VOUCHER SHOWS THAT ON SEPTEMBER 30, 1959, THE NATIONAL PARK SERVICE ISSUED TO GARKANE POWER ASSOCIATION, INC., SPECIAL USE PERMIT NO. CARE 2-59, WHICH AUTHORIZED THE ASSOCIATION TO CONSTRUCT A 3 PHASE 69KV TRANSMISSION LINE, AND RELOCATE AND REPHASE THE EXISTING 7.2KV DISTRIBUTION LINE THROUGH THE FREMONT RIVER CANYON IN THE MONUMENT. THE PERMIT COVERED THE PERIOD FROM SEPTEMBER 1, 1959, TO AUGUST 31, 1979. ITEM 16 OF THE CONDITIONS OF THE PERMIT READS AS FOLLOWS:

THE PERMITTEE SHALL MOVE AND RELOCATE ANY POLES, LINE OR EQUIPMENT, INCLUDING THE EXISTING SECTION OF LINE FROM THE WEST BOUNDARY TO THE FRUITA VICINITY AS MAY BE REQUIRED FOR THE PROPER ADMINISTRATION OF THE MONUMENT, UPON REQUEST OF THE SUPERINTENDENT. RELOCATION UNDER THIS CLAUSE TO BE WITHOUT COST TO THE GOVERNMENT.

IN ORDER TO CONSTRUCT THE FREMONT RIVER ROAD THROUGH THE CAPITOL REEF NATIONAL MONUMENT THE NATIONAL PARK SERVICE FOUND IT NECESSARY TO RELOCATE A SECTION OF THE ASSOCIATION'S ELECTRICAL POWER LINES AND POLES ON GOVERNMENT-OWNED PROPERTY IN THE VICINITY OF THE TOWN OF FRUITA, UTAH.

BY LETTER DATED DECEMBER 6, 1961, THE SUPERINTENDENT OF THE MONUMENT REQUESTED GARKANE POWER ASSOCIATION, INC., TO RELOCATE THE ELECTRICAL FACILITIES ON THE PROPERTY, WITHOUT COST TO THE GOVERNMENT, CITING CONDITION 16 OF THE SPECIAL USE PERMIT AS AUTHORITY THEREFOR. THE ASSOCIATION REMOVED THE FACILITIES BUT CLAIMS REIMBURSEMENT FOR THE EXPENSE THEREOF IN THE AMOUNT OF $598.46. IT APPEARS TO BE THEIR POSITION THAT THE PROPERTY INVOLVED, WHEN ACQUIRED BY THE GOVERNMENT FROM MAX L. KRUEGER IN JUNE 1961, WAS SUBJECT TO AN EASEMENT GRANTED BY KRUEGER TO GARKANE POWER ASSOCIATION, INC., FOR THE ERECTION, MAINTENANCE AND OPERATION OF PUBLIC POWER POLES ACROSS THE SAME AND, CONSEQUENTLY, THAT THE EXPENSE OF RELOCATING THE FACILITIES IS AN OBLIGATION OF THE GOVERNMENT RATHER THAN THAT OF THE ASSOCIATION.

IT IS WELL-ESTABLISHED THAT THE GRANTOR OF AN EASEMENT OR RIGHT-OF WAY TO MAINTAIN ELECTRICAL LINES AND POLES OVER HIS PROPERTY CANNOT CHANGE THE LOCATION OF THE EASEMENT EXCEPT WITH THE AGREEMENT OF THE GRANTEE. AND, UNDER THIS SAME PRINCIPLE THE RIGHT OF THE GRANTEE TO MAINTAIN THE LINES WITHOUT CHANGE IS UNIMPAIRED BY REASON OF THE SUBSEQUENT CONVEYANCE OF THE UNDERLYING FEE IN THE PROPERTY TO A PURCHASER, INCLUDING THE GOVERNMENT. SEE UNITED STATES V. OREGON ELECTRIC RAILWAY COMPANY, 195 F.SUPP. 182; YOUNGSTOWN STEEL PRODUCTS CO. OF CALIFORNIA V. CITY OF LOS ANGELES, 240 P.2D 977.

AS INDICATED ABOVE, GARKANE POWER ASSOCIATION, INC., REQUESTED OF THE NATIONAL PARK SERVICE A SPECIAL USE PERMIT TO CONSTRUCT A TRANSMISSION LINE THROUGH THE FREMONT RIVER CANYON IN THE MONUMENT. THE PERMIT ISSUED TO AND ACCEPTED BY THE ASSOCIATION WAS MADE THE SUBJECT OF CERTAIN CONDITIONS INCLUDING ITEM 16 QUOTED ABOVE.

BY THE TERMS OF SAID ITEM 16, THE ASSOCIATION IS REQUIRED TO "* * * MOVE AND RELOCATE ANY POLES, LINE OR EQUIPMENT * * * AS MAY BE REQUIRED FOR THE PROPER ADMINISTRATION OF THE MONUMENT, UPON REQUEST OF THE SUPERINTENDENT * * * WITHOUT COST TO THE GOVERNMENT.' THIS PROVISION, STANDING ALONE, FAIRLY MAY BE SAID TO RELATE TO ANY POLES, LINE OR EQUIPMENT ERECTED BY THE ASSOCIATION IN CONNECTION WITH CONSTRUCTION OF THE TRANSMISSION LINE AUTHORIZED BY THE PERMIT. HOWEVER, THE PROVISION GOES FURTHER AND EXPRESSLY REQUIRES THE ASSOCIATION TO MOVE AND RELOCATE, UPON REQUEST OF THE SUPERINTENDENT AND WITHOUT COST TO THE GOVERNMENT, ANY POLES, LINE OR EQUIPMENT IN "THE EXISTING SECTION OF LINE FROM THE WEST BOUNDARY TO THE FRUITA VICINITY AS MAY BE REQUIRED FOR THE PROPER ADMINISTRATION OF THE MONUMENT * * *.'

THUS, THE PROVISIONS OF ITEM 16 PLAINLY REQUIRE THE ASSOCIATION, WHEN REQUESTED BY THE SUPERINTENDENT FOR THE PROPER ADMINISTRATION OF THE MONUMENT AND WITHOUT COST TO THE GOVERNMENT, TO MOVE AND RELOCATE THE MENTIONED ELECTRICAL FACILITIES ERECTED EITHER PURSUANT TO THE TERMS OF THE PERMIT OR IN CONNECTION WITH THE EXISTING SECTION OF LINE FROM THE WEST BOUNDARY TO THE FRUITA VICINITY. IT HAVING BEEN INFORMALLY LEARNED FROM REPRESENTATIVES OF THE NATIONAL PARK SERVICE THAT THE PROPERTY IN QUESTION IS A PART OF OR IN THE VICINITY OF THE TOWN OF FRUITA, IT FOLLOWS THAT SUCH PROPERTY IS ENCOMPASSED BY THE PROVISIONS OF ITEM 16. TO THE EXTENT THAT THE RIGHTS UNDER THE EASEMENT GRANTED TO THE ASSOCIATION FOR THE ERECTION, MAINTENANCE AND OPERATION OF PUBLIC POWER POLES ACROSS THE PROPERTY CONFLICT WITH THE EXPRESS PROVISIONS OF ITEM 16, IT IS OUR VIEW THAT ITEM 16 BEING LATER IN POINT OF TIME MUST PREVAIL IN THIS MATTER.

THE SUPERINTENDENT OF THE CAPITOL REEF NATIONAL MONUMENT HAVING DETERMINED THAT THE ELECTRICAL FACILITIES OWNED BY GARKANE POWER ASSOCIATION, INC., INTERFERED WITH CONSTRUCTION OF THE FREMONT RIVER ROAD THROUGH THE MONUMENT, THE RELOCATION OF SUCH FACILITIES CONSTITUTED AN OBLIGATION OF THE ASSOCIATION UNDER THE TERMS OF ITEM 16 OF THE CONDITIONS OF THE CITED SPECIAL USE PERMIT. SUCH ACTION HAVING BEEN ACCOMPLISHED BY THE ASSOCIATION, IT IS NOT ENTITLED TO REIMBURSEMENT THEREOF FROM THE UNITED STATES. ACCORDINGLY, PAYMENT OF THE VOUCHER, WHICH WILL BE RETAINED HERE, IS NOT AUTHORIZED.