Bureau of Mines-Continued.
Enforcement Powers of Coal Mine Inspec-
tors.
3. Refusal to admit an inspector of the
Bureau of Mines to a coal mine is a violation
of the act of May 7, 1941 (55 Stat. 177). If
unopposed by physical force, an inspector
may enter a coal mine in spite of the opposi-
tion of the owner, but the use of force to gain
entrance is not justified. Entrance to mines
and reports from owners may probably be
compelled by injunction.....
Government Exploration for Coal; Consent
by Prospecting Permittee.
4. Since a coal prospecting permittee under
the leasing act of February 25, 1920, pos-
sesses a valuable right which may be in-
terpreted as exclusive even against the
Government, the Government should ob-
tain the consent of the permittee to explora-
tion for coal by the Government in an instru-
ment defining the interests of both parties.
A similar agreement should be executed with
an applicant for a lease who has made a coal
discovery under a prospecting permit and
with an applicant for an extension of a pros-
pecting permit who has made substantial
improvements or investments for prospect-
ing under his permit. No agreement is re-
quired where there has been filed and not
yet granted an application for a permit or for
an extension of a permit under which no
substantial improvements nor investments
have been made. The Bureau of Mines
should request the General Land Office to
deny any such application when the Bureau
of Mines intends to explore the area itself.
No agreement with a prospecting permittee
is necessary where the Bureau of Mines in-
tends to explore for minerals other than those
covered by the prospecting permit.....
Bureau of Reclamation Contracts.
Bureau of Reclamation.
Property Damage; Availability of Appro-
priations.
See, also, Damage Claims.
1. A claim for damage to privately owned
property destroyed by fire through the
negligence of employees of the Bureau of
Reclamation may not be paid directly under
an appropriation act provision for the pay-
ment of damages to "private property
by reason of the operations of the
United States
* in the survey,
construction, operation, or maintenance of
irrigation works," since such provisions
have been uniformly construed as not ex-
tending to claims arising from negligent acts.
The claim may be allowed and certified to
Congress for payment, however, under the
act of December 28, 1922 (42 Stat. 1066)..
Page Bureau of Reclamation-Con.
Property Damage; Flooding.
2. The Government is not liable in case
of damage to privately owned property re-
sulting from flooding caused by a break in its
irrigation canal where the cause of the
damage is shown to have been the burrowing
actions of ferae naturae, over which the
Government has no control..
See Oil and Gas Lands; School Land Grants.
Canadian Indians.
Charges for Rights-of-Way.
See Rights-of-Way.
Citizenship.
See Indians and Indian Lands; Philippine
Islands; Virgin Islands.
Civil Service Rules, Puerto Rico.
See Puerto Rico.
Claims Against the United States.
See Attorneys and Agents; Contracts;
Damage Claims; Indians.
Claims by the United States.
See, also, Contracts; Damage Claims.
1. Authority for the construction and
operation of hospitals by the Alaska Rail-
road was contained in the act of March 14,
1912 (38 Stat. 305). An Alaska Railroad
hospital is a United States institution. An
obligation incurred for services rendered by
a railroad hospital constitutes a debt due
the United States, action for the collection
of which is not barred by the statute of
limitations of the Territory of Alaska......
Coal Lands.
See, also, Mineral Lands; Mineral Leasing
Act; Oil and Gas Lands.
Rights of Prospecting Permittee.
1. Since a coal prospecting permittee under
the leasing act of February 25, 1920, pos-
sesses a valuable right which may be in-
terpreted as exclusive even against the Gov-
ernment, the Government should obtain the
consent of the permittee to exploration for
coal by the Government in an instrument
defining the interests of both parties. It is
recommended that such an agreement pro-
vide that any discovery made by the Gov-
ernment shall not prevent the granting to
the permittee of a lease without competitive
bidding covering all coal discovered, pro-
vided the permittee has cooperated in the
Coal Lands-Continued.
Rights of Prospecting Permittee-Con.
exploration by the Government in the man-
ner specified in the agreement, and with the
understanding that any such lease shall pro-
vide such special terms of rental and royalty
and such other requirements with respect
to minerals discovered by the Government
as the Secretary of the Interior may deem
appropriate. A similar agreement should be
executed with an applicant for a lease who
has made a coal discovery under a pros-
pecting permit and with an applicant for
an extension of a prospecting permit who has
made substantial improvements or invest-
ments for prospecting under his permit. No
agreement is required where there has been
filed and not yet granted an application for
a permit or for an extension of a permit under
which no substantial improvements nor in-
vestments have been made. The Bureau of
Mines should request the General Land
Office to deny any such application when
the Bureau of Mines intends to explore the
area itself. No agreement with a prospect-
ing permittee is necessary where the Bureau
of Mines intends to explore for minerals
other than those covered by the prospecting
permit.....
Coal Mine Inspectors, Enforce-
1. The act of August 1, 1888 (25 Stat. 357,
40 U. S. C. secs. 257 and 258), provides in
general terms that where an officer of the
United States is authorized to procure real
estate for a public use he is authorized to
acquire it by condemnation....
Constitution of Mississippi, Inter-
pretation of.
Constitutional Interpretation.
See Indians and Indian Lands, subheading
Taxation.
Contest, Contestant.
See Homestead, subheading Contest.
Contracts.
See, also, Indians, subheading, Contracts;
Oil and Gas, subheading Contracts.
1. The United States is as much bound by
its contracts as are individuals......
Assignment.
2. An assignee is bound by the practical
interpretation of the assigned contract
concurred in by his assignor...
Page Contracts-Continued.
Changes in Plans and Specifications.
3. The contracting officer under a contract
for the construction of a dam ordered ex-
cavation stopped at a point sooner than
allegedly anticipated by the contractor
in making its bid, and additional compen-
sation is claimed on the ground that the bid
thereby was thrown out of balance. Held,
(1) that the decrease in the amount of ex-
cavation by the contracting officer did not
constitute a change in the specifications
calling for an adjustment under either
Article 3 of the contract, which covered ac-
tual changes in the plans or specifications,
or under Article 4, which covered changes
in subsurface conditions encountered or
discovered during the course of the work,
(2) that the contracting officer acted prop-
erly under the contract in terminating
excavation when, in his opinion, a suitable
foundation had been reached, (3) that the
estimate of the amount of excavation was
not an actionable representation or guaran-
tee, but was for the purpose of comparing
bids only, and that the contractor was
charged with the responsibility of confirm-
ing estimates by an examination of all
available data and material furnished to
it by the Government, together with an
examination of the locus, and (4) that re-
gardless of increase or decrease in the amount
of excavation, payment should be made
at the unit bid price......
Claims of Contractors; Offsets.
4. Moneys legally due the Government
under a contract and not paid, by reason
of a mistake of law, may be set off against
a subsequent claim of the contractor.....
5. The Commissioner of Indian Affairs,
authorized by contract to readjust stump-
age prices by a given date, and having done
so, had exhausted his authority and was
not empowered to make a further adjust-
ment a few days later. The profit drawn
from such unauthorized action would be
properly deductible from any claim against
the Government based upon the same con-
tract
Eight-Hour Law Violations.
6. A requirement of mere business con-
venience or pecuniary advantage does not
constitute an "emergency" relieving a con-
tractor of the penalty for a violation of the
eight-hour law. The necessity of repairing
a dangerously weak tower, however, does
constitute an emergency "caused by
danger to life," and no penalty should be
imposed for overtime employment in such
work.
7. Where an Indian lumber contract
authorized the Commissioner to readjust
stumpage prices at three-year intervals
on the basis of prices prevailing during such
periods, and stumpage price readjustments
were made at other times and on other
grounds to the benefit of the contractor,
the contractor is estopped from objecting
to a continuance of the practice when it
runs to his disadvantage...
Hire of Animals; Recovery for Loss.
8. Claims for the loss of animals rented
to the National Park Service under contracts
entered into pursuant to the provisions
of the act of May 26, 1930 (46 Stat. 381),
are reimbursable from any available funds
in the appropriation to which the hire of
such equipment would be properly charge-
able..
9. Where an Indian lumber contract
provided for readjustment of stumpage
prices every three years such readjustments
could be fixed at rates varying during the
period before the next readjustment. Where
a contract has been loosely construed by
both parties for many years, the contractor
seeking to establish a breach must bear the
burden of showing that the interpretation
put upon the contract by the Government
was unreasonable...
Liquidated Damages; Delay.
10. When there is a delay in furnishing
materials beyond the date set by the con-
tract for delivery and the materials could
not sooner have been procured in the open
market, it is proper to assess the liquidated
damages prescribed in the contract, not-
withstanding the fact that the total damages
thus assessed exceed the purchase price of
the materials furnished. Distinguishing 11
Comp. Gen. 384, and 16 Comp. Gen. 344....
Liquidated Damages; Delivery Provision.
11. Relief from payment of liquidated
damages assessed for delay in delivery may
be granted where contract provisions permit
finding as excusable thereunder delays
caused by required filling of Government
national defense orders, and where needed
materials cannot be procured in the open
market.
Liquidated Damages; Substantial Perform-
12. A contract for materials provided for
delivery by a certain date and for the assess-
ment of liquidated damages at the rate of $5
per day for delay in performance. All of the
materials except certain bolts, having a value
Page Contracts-Continued.
Liquidated Damages; Substantial Perform-
of 6 percent of the total contract price and not
essential in the use of the remaining mate-
rials, were delivered by the date fixed. Held,
that there was substantial performance of
the contract within the time set and that
liquidated damages accordingly should not
be assessed..
Liquidated Damages; Relation to Probable
Actual Damages.
13. A contract for the furnishing of brass
screws having a value of $17.26 provided for
the assessment of liquidated damages at the
rate of $5 per day for delay in performance.
The contracting officer assessed liquidated
damages in the amount of $45 for nine days'
delay in making delivery. Held, that the
liquidated damages stipulated bore no rea-
sonable relation to the probable actual dam-
ages and that the damages imposed therefore
should be remitted. Citing 16 Comp. Gen.
344..
Liquidated Damages; "Shipment."
14. Liquidated damages are properly as-
sessable for delays occurring between the
time of delivery to an intermediate agent for
subsequent delivery to a shipper and the
time of actual movement from the shipping
point, such intermediate action not consti-
tuting "shipment".
Modification; "Unknown Conditions of an
Unusual Nature."
15. During excavation in a borrow pit the
contractor under a contract for the construc-
tion of a dam encountered rhyolite, a sub-
stance which, after extended examination by
the Government engineers, was rejected as
unsuitable for the earthfill required by the
contract specifications, thereby necessitating
the utilization of borrow pits farther removed
from the construction site, with resultant
increased costs. Geological data available
prior to the execution of the contract had
indicated with certainty to both the Gov-
ernment and the contractor that the area in
question would yield adequate suitable ma-
terial. Held, that the occurrence of rhyolite
constituted an "unknown" condition "of an
unusual nature materially differing from
those ordinarily encountered and generally
recognized as inhering in work of the charac-
ter provided for in the plans and specifica-
tions," within the meaning of article 4 of the
contract, and that the contract therefore
should be modified to provide for payment
of the increased costs to the contractor......
Practical Construction.
16. The practical construction given to a
contract by both parties for several years
Contracts-Continued.
Practical Construction-Continued.
may not be repudiated by a party that has
profited therefrom even though such con-
struction is incompatible with the literal
terms of the contract..
17. Express consent by the contractor to a
proposed course of action constitutes a waiver
barring any claim grounded on the illegality
of such action....
Delegation of Authority.
See Secretary of the Interior, Authority, sub-
heading Delegation.
See, also, Indians, subheading Damage
Claims.
Claims by United States Against Federal
Employees.
1. An administrative officer is without
authority to require reimbursement, either
by withholding compensation or otherwise,
from an employee for damage to Govern-
ment property caused by the employee's
negligence, since an officer or employee may
not be administratively deprived of his law-
ful compensation, and is as much entitled to
his day in court as any other citizen against
whom the United States may assert a claim.
The appropriate procedure is to refer such a
claim to the Department of Justice for action
if a request for payment is unsuccessful....
Hire of Animals; Recovery for Loss.
2. Claims for the loss of animals rented to
the National Park Service under contracts
entered into pursuant to the provisions of
the act of May 26, 1930 (46 Stat. 381), are
reimbursable from any available funds in
the appropriation to which the hire of such
equipment would be properly chargeable..
Indebtedness to Government.
3. Where claimant was still indebted to
the Government for part of the purchase
price of the subject matter of the claim,
under a specific reimbursable agreement,
the superintendent or other bonded officer
of the Indian Service, to be determined by
the Secretary of the Interior, to whom pay-
ment will be made under the act of February
25, 1933, supra, should be governed by the
Reimbursable Regulations in order to pro-
tect the interests of the Government in the
matter of the unpaid account..
Negligence; Imputation to Passenger.
4. Negligence of private driver, which
would preclude allowance of any claim sub-
Page Damage Claims-Continued.
Negligence; Imputation to Passenger-Con.
mitted by him, cannot be imputed to pas-
senger who presents meritorious claim and is
shown not to have been engaged in joint
enterprise nor involved in directing opera-
tion of the private car.
Negligence; Res Ipsa Loquitur.
5. The doctrine of res ipsa loquitur may be
applied where claimant's horse was killed as
result of coming in contact with a fallen
high-tension electric line belonging to the
Office of Indian Affairs...
Property Damage; Bailee.
6. Private property, in the possession of
claimant as bailee, was damaged through
the negligence of a Government employee.
Since the bailee was responsible to the
bailor-owner, who waives in favor of bailee all
right of claim against any third party by
reason of any collision involving the bailed
property, the bailee's interest in the property
entitles him to reimbursement under the
act of June 28, 1937-
Property Damage; Direct Result.
7. Claims for damage to privately owned
property resulting from silt blown from a
lowered reservoir may not be paid under an
appropriation for the payment of damages
caused "by reason of the operations of the
United States
in the survey, con-
struction, operation, or maintenance of
irrigation works," since the damage was not
the direct result of the direct act of Govern-
ment employees....
Property Damage; Ferae Naturae.
8. The Government is not liable in case of
damage to privately owned property re-
sulting from flooding caused by a break in
its irrigation canal where the cause of the
damage is shown to have been the burrowing
actions of jerae naturae, over which the
the Government has no control, and not the
result of a direct nonnegligent act of an em-
ployee in the survey, construction, opera-
tion, or maintenance of irrigation works, for
which recovery may be had under arnual
appropriation act provisions, or a negligent
act, for which recovery may be had under
the act of December 28, 1922 (42 Stat. 1066,
31 U. S. C. sec. 215)....
Property Damage; Implied Taking.
9. The intermittent and incidental blow-
ing of silt from a lowered reservoir to pri-
vately owned property does not constitute
such a permanent invasion of the property
as to amount to an appropriation of it and
hence an implied taking...
Damage Claims-Continued.
Property Damage; Loss of Profits.
10. Recovery for loss of profits alleged to
have resulted from negligence cannot be
allowed where the anticipated profits are
vague and speculative and the business in
question has not been operated for a suffi-
cient period of time to give it permanency
and recognition..
Property Damage; Measure of Damages.
11. A claimant, whose land was subject
to intermittent overflow from irrigation
ditch, was obligated to make reasonable
efforts to minimize the resulting damage,
and since he could have prevented recurrent
losses by the improvement of a roadway
his recovery is to be measured by the reason-
able expense which thereby would have
been incurred, rather than by the entire
damage sustained.
Property Damage; Negligence.
12. Failure to clean grille in irrigation ditch
siphon held to constitute negligence making
Government liable for damage resulting from
overflow on private property. Claim may
not be paid directly under act of February
20, 1929, authorizing the Secretary of the In-
terior to "pay
for damages caused
to owners of lands or other private property
* by reason of the operations of the
United States
in the survey, con-
struction, operation, or maintenance of irri-
gation works," since this provision has been
uniformly held to cover only damage result-
ing from direct, nonnegligent acts of the
Government.
13. A claim for damage to privately owned
property destroyed by fire through the negli-
gence of employees of the Bureau of Recla-
mation may not be paid directly under an
appropriation act provision for the payment
of damages to "private property
by reason of the operations of the United
States
in the survey, construc-
tion, operation, or maintenance of irrigation
works," since such provisions have been
uniformly construed as not extending to
claims arising from negligent acts. The
claim may be allowed and certified to Con-
gress for payment, however, under the act of
December 28, 1922 (42 Stat. 1066, 31 U. S. C.
sec. 215), which expressly authorizes such
action on claims founded in negligence of the
Government....
Restricted Indian; Disposition of Award.
14. Where the claimant, a restricted In-
dian, has died during the interim between
the date of filing claim and the award of dam-
ages, payment of the award should be made
in accordance with the act of February 25,
1933 (47 Stat. 907)...
Page Eight-Hour Law Violations.
Extinguishment of Aboriginal
Rights.
Extradition of Indian Fugitives.
See Indians and Indian Lands, subheading
Extradition; Indian Tribes, subheading, Tribal
Authority to Extradite Fugitives.
Federal Employees.
Dual Employment.
1. The prohibition in section 1765, Revised
Statutes (5 U. S. C. sec. 70), against dual em-
ployment is only against receiving extra or
double compensation out of United States
funds. In the absence of specific reason to
the contrary, there is nothing to prevent an
employee of the United States receiving com-
pensation from outside sources and at the
same time his salary from the Government.
The questions of conflict of duties of dual
employments or of diminished efficiency
are ones of administration which do not
effect the payment of salary so long as em-
ployment by the Government exists...........
Private Employment,
2. There is no express statutory prohibi-
tion against the holding of a Government
position simultaneously with a position in
private industry. The prohibition in the
act of March 3, 1917 (39 Stat. 1106, 5 U. S. C.
sec. 66), against the receipt of supplemental
salary by a Government employee in connec-
tion with his official duties from any source
other than the Government of the United
States, with certain exceptions as to contrib-
uted funds, is applicable only when the
salary from the private source is paid for
duties which are performed pursuant to
Federal employment..
Federal Employees, Claims Against.
See Damage Claims.
Federal Range Code.
See Grazing and Grazing Lands; Taylor
Grazing Act and Lands.
See Indians, subheading Taxability.
Fishing Rights..
Fort Marion National Monument,
Florida.
See National Parks and Monuments.
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