(5 F.R. 3888), applies even though a Federal officer or employee was hired or rehired in a Territory or possession of the United States, since the act presupposes merely "performing official duties in a territory or possession of the United States." 59-231

TIDELANDS

Absolute property in and dominion and sovereignty over the soils beneath their tide waters have been reserved to the several States, so that land in the State of California below the line of ordinary high tide is not subject to prospecting under a Federal oil and gas prospecting permit, title to said land having passed to the State, subject only to the paramount right of navigation over the waters so far as such navigation might be required by the necessities of commerce with foreign nations or among the several States.

55-1

Title to tidelands in California passed to the State in 1850 and no mineral rights in such lands were reserved to the United States. In 1850 there was no established mineral policy of the United States. 56-60 Tidelands and lands beneath navigable inland waters belong to the States within whose boundaries they are situated (or to the States' grantees). 60-491

TIMBER AND STONE ACT

Land which is shown to be more valuable at date of application for townsite purposes than for the stone it contains is not subject to acquisition under the timber and stone law. 52-36

Prior to the submission of final proof and payment of the purchase money an application to make entry under the timber and stone law does not operate to defeat a withdrawal made pursuant to the act of June 25, 1910, (36 Stat. 847), as amended by the act of Aug. 24, 1912 (37 Stat. 497). 52-102

Henshaw filed a protest against a timber and stone application filed in 1933, alleging prior purchase in 1908 of the land from the State of California by his ancestor and continuous possession and use thereof since by his ancestor or his heirs for grazing, that the land had no commercial timber upon it, that the selection of the land

by the State had been rejected in 1917. The Commissioner of the General Land Office dismissed the protest for the reason that the selection of the land by the State had been rejected in 1917. Protestant, after due notice of this dismissal, took no action in that proceeding but thereafter filed a contest affidavit alleging substantially the same facts as alleged in the former protest, which the Commissioner dismissed on the grounds (1) that the charge stated nothing that was not known to his office and was subject to dismissal, therefore, under Rule 1 of Practice, and (2) that the charges in the former protest and present contest were the same. Held: (1) That the contest affidavit did not allege causes of invalidity in the timber and stone application shown by the records, but extraneous matter, and that the first ground for dismissal was unsound; (2) That the contest affidavit raised the same issues between the same parties concerning the same subject matter that was raised in the previous protest and the matter was res judicata, although in the decision on the previous protest no consideration was given to the question of the value of the land for timber, which was not a basis of contest but of protest.

56-241

TIMBER SALES AND DISPOSALS Instructions of Feb. 25, 1927, sale of dead or down and fire filled or damaged timber. Paragraph 2, Cir. No. 1093 (51 L.D. 574), amended. 52-42

Regulations of Mar. 20, 1929, exportation of timber from public lands in Alaska. Cir. No. 1092 (51 L.D. 537), amended (Cir. No. 1184). 52-585

Regulations of Aug. 5, 1929, exportation of timber from public lands in Alaska. Cir. No. 1092 (51 L.D. 537), amended. (Cir. No. 1198.) 52-586

Regulations of Aug. 15, 1932, free use of timber on vacant unreserved public lands in Arizona and other western States. (Cir. No. 1285, superseding Cir. Nos. 222 and 223 (42 L.D. 22).) 54-26

The act of Mar. 4, 1933 (47 Stat. 1568), which merely authorizes and directs the Secretary of the Interior, with the consent of the Indians and the purchasers, to modify timber sale contracts, cannot prop

erly be construed to modify, by its own operation and without the consent of the purchaser, a contract provision for price reduction. 54-401

It is doubtful whether the President may, pursuant to his war powers, authorize the disposition of timber within the Olympic National Park without regard to the prohibitions contained in the National Park statutes. 58-480

As the Tongass Timber Act of Aug. 8, 1947 (61 Stat. 920) vests in the Secretary of Agriculture the exclusive authority to make valid sales of timber growing in the Tongass National Forest, including timber growing on areas which are subject to Indian possessory rights, a native tribe or group which has "Indian title" or possessory rights with respect to an area of timberland within the exterior boundaries of that forest cannot legally sell such timber.

I. Generally.

TORTS

60-142

Page 461

463

463

II. Aircraft....

III. Amount of Damages..

IV. Bailments...

464

The Government cannot, except with the consent of Congress, be sued for the torts, misconduct, misfeasance, or laches of its officers or employees, but it is liable for property taken or injured by its employees for public use. 53-399

A valid claim for damages under the terms of the act of Dec. 28, 1922 (42 Stat. 1066), arises where, without negligence on the part of the claimant, his property is injured through the negligent operation of an automobile by an employee of the United States acting within the scope of his employment, and the amount of the claim does not exceed $1,000.

54-209

Under the terms of the act of Dec. 28, 1922 (42 Stat. 1066), an injury is compensable only if it was caused by the negligence of an officer or employee of the

United States while acting within the scope of his employment. 54-347

In order to warrant a recovery of damages under the act of Dec. 28, 1922 (42 Stat. 1066), it must be established that there was a breach of duty which was the efficient cause of the accident resulting in damage, and that the claimant himself did not neglect any duty which, if performed, would have prevented the accident. 54-348

The act of Dec. 28, 1922 (42 Stat. 1066), authorizing the heads of departments to consider and certify to Congress claims filed "on account of damages to or loss of privately owned property *** caused by the negligence of any officer or employee of the Government," does not authorize the consideration of costs or attorneys' fees incident to the presentation of a claim. 56-245

Holding that an erroneous allowance of a homestead entry is an act of negligence and that the United States is liable for damage resulting therefrom is not inconsistent with the principle that upon the cancellation of a void entry the land is to be regarded as if no entry had been made. 56-250

The right of an insurance company to present a subrogated claim for damages to private property must be based, so far as the Government is concerned, on actual payment to the assured. The mere existence of a policy or a statement of what the assured is willing to accept is insufficient to subrogate the insurance company to the assured's rights. 56-258

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. Although the references by district counsel throughout the record to negligence of Government employees in failing safely to maintain the powerline are not supported by evidence as to any specific acts of negligence, the proof of the accident and of surrounding circumstances are such as to leave no reasonable conclusion other than that the mishap occurred because of the negligence of the Government. 57-121

Where the claimant, a restricted Indian, has died during the interim between the

date of filing claim and the award of damages, payment of the award should be made in accordance with the act of Feb. 25, 1933 (47 Stat. 907), which provides that any money accruing from a governmental agency to Indians who are recognized wards of the Government, for whom no legal guardians or other fiduciaries have been appointed, may be paid to such superintendent or other bonded officer of the Indian Service as the Secretary of the Interior shall designate, to be handled, disbursed to proper payees, and accounted for by him with other moneys under his control, in accordance with existing law and the regulations of the Department.

57-121

The doctrine of res ipsa loquitur is applicable in cases of damage to privately owned property resulting from blasting operations conducted by Government employees and, in the absence of an explanation by the Government consistent with freedom from negligence, claims for such damage should be allowed and certified to the Congress for payment under the act of Dec. 28, 1922 (42 Stat. 1066, 31 U.S.C. 215). 58-63

When a trespasser not only injures an owner by depriving him of his chosen use of his property or of his privilege of withholding it from use but also tortiously uses that property for his own purposes and gain, the damages for which he is responsible are determinable not by reference to the value of what the owner might have done with his property but by reference to the value of what the tortfeasor actually did with it: Held, that one who without authority uses lands in a stock driveway for his own purposes, building thereon structures for diverse uses and conducting

thereon diverse commercial enterprises is liable not for the worth of some different use, such as grazing, which the Government might have made of the lands but for the worth of the use which he makes of the land, namely, the reasonable rental value of that use, its extent and duration both being considered. 58-708

The claim of an insurance subrogee is recognized where actual payment for the damage or a portion of it has been made by the insurance company under a legal duty to the owner of the damaged property. 59-520

The fact that damage is covered by insurance does not bar a right to payment under the Federal Tort Claims Act. If the claim is otherwise meritorious, it is paid to the insured if he has not collected from the insurance company, or to the insurance company to the extent that it has made payment to the insured. 59-520

Where an insurance company informs claimant that it will not make payment for damage, the Department may pay such a claim, if it is otherwise meritorious, since there is no danger that the claimant will be compensated twice or that the Department will be required to make a second payment to the insurance company on the same claim. 59-520

The United States is not liable under the Federal Tort Claims Act (60 Stat. 812), for damage caused by an alleged negligent act of an employee of a person performing work for the Government as an independent contractor. 59-560

The case of Wooden-ware Co. v. United States (106 U.S. 432) determined that, in the absence of a State statute on the point, an innocent purchaser from a willful trespasser "must respond by the same rule of damages as his vendor should if he had been sued," and the contrary conclusion in the departmental memorandum of Mar. 26, 1938, to the General Land Office was erroneous. 60-6

432, as fixing, in the absence of a State statute on the point, the measure of damages payable by said innocent purchaser as the value of the timber at the time of such purchase, irrespective of the extent of the liability of the willful trespasser. 60-6

The 1-year period in which a claim under the Federal Tort Claims Act could be filed by an insurer-subrogee began to run on the date when the claim of its insured against the United States accrued (or on Aug. 2, 1946, whichever was later) and not on the date when it made payment to the insured. 60-242

In a situation where liability must be grounded on negligence, a person is liable only for those consequences which he, as an ordinarily prudent person, should reasonably have foreseen as a probable result of his conduct. 60-399

The same act of careless conduct may constitute negligence toward one person or article of property and not constitute negligence toward another person or article of property.

60-399

Under the law of Oregon, a Government employee parking his private motor vehicle in a Government parking lot provided for his convenience is generally an invitee. The Government owes a duty to such an invitee of exercising reasonable and ordinary care and providing reasonably safe premises. 61-447

Where a sudden gust of wind blows paint from a spraying operation performed by Government employees and deposits it on a parked motor vehicle 130 feet away, the Government is not liable to the owner thereof. 61-447

II. AIRCRAFT

A trespass upon privately owned land due to a forced landing of an airplane is a "wrongful act," within the meaning of that term as used in 28 U.S.C. 2672, even though the pilot used due care in the handling of the aircraft. 60-337

The Government is liable for the damage resulting from a forced landing on privately owned land of an airplane piloted by an employee of the Government acting within the scope of his employment. 60-338

III. AMOUNT OF DAMAGES

The claimant rented an automobile for $25 for the period during which his own was being repaired, it having been damaged by reason of the negligence of a Government employee, and used the rented automobile for necessary transportation. Held, That since it is well settled that deprivation of use of property is a proper item of damages to be recovered from the person whose negligent act necessitated its repair, the rental value of the claimant's automobile should be considered as a claim "on account of damages to or loss of privately owned property" within the meaning of the act of Dec. 28, 1922 (42 Stat. 1066), and the amount so expended for rental may be regarded as the reasonable rental value of the damaged automobile. 56-245

Following the sale by the entryman of the standing timber for the sum of $125, the purchaser sold and delivered 41,702 feet of timber before discovery by the claimant. Thereafter 34,530 feet were sold and delivered, for which the claimant received payment at the rate of $3 per

thousand feet. The claim is allowed for the 41,702 feet of timber, for which the claimant has not received payment, at $3 per thousand feet, the valuation made by the claimant and supported by other evidence in the record. 56-251

In its petition for certiorari in Standard Oil Co. of California v. United States, 309 U.S. 654 (1940), the Department of Justice, relying on Board of Commissioners v. United States, 308 U.S. 343, 350, argued that Federal law controls when the right to be enforced springs from the holding of property by the Government in a sovereign capacity under the Constitution and that the measure of damages in a conversion of United States oil is not to be determined by State law under Mason v. United States and Erie v. Tompkins but is primarily a matter of Federal law as to which a Federal court may formulate a judicial rule in the absence of express Federal legislation. 58-695

The case of Wooden-ware Co. v. United States (106 U.S. 432) determined that, in the absence of a State statute on the point, an innocent purchaser from a willful trespasser "must respond by the same rule of damages as his vendor should if he had been sued," and the contrary conclusion in the departmental memorandum of Mar. 26, 1938, to the General Land Office was 60-6

erroneous.

memorandum of

The departmental Mar. 26, 1938, to the Commissioner of the General Land Office, concerning the measure of damages payable by an innocent purchaser from a willful trespasser, erroneously regarded headnote 3 in the official report of the Court's opinion in the case of Wooden-ware Co. v. United States, 106 U.S. 432, as fixing, in the absence of a State statute on the point, the measure of damages payable by said innocent purchaser as the value of the timber at the time of such purchase, irrespective of the extent of the liability of the willful trespasser.

IV. BAILMENTS

60-6

Private property, in the possesssion 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 (50 Stat. 321). 57-101

The bailee of an automobile, who is responsible to the bailor for all damage under $100 done to the vehicle during the period of the bailment, may properly file a claim against the United States under the Federal Tort Claims Act for compensation because of damage in the amount of $69.15 to the bailed automobile allegedly as a result of a negligent or wrongful act or omission on the part of a Government employee acting within the scope of his employment. 60-252

V. CONTRIBUTORY NEGLIGENCE In order to warrant a recovery of damages under the act of Dec. 28, 1922, it must be established that there was a breach of duty which was the efficient cause of the accident resulting in damage, and that the claimant himself did not neglect any duty which, if performed, would have prevented the accident. 54-348

Negligence of private driver, which would preclude allowance of any claim submitted by him, cannot be imputed to passenger who presents meritorious claim and is shown not to have been engaged in joint enterprise nor involved in directing operation of the private car. 57-77

The doctrine of res ipsa loquitur is applicable in cases of damage to privately owned property resulting from blasting operations conducted by Government employees and, in the absence of an explanation by the Government consistent with freedom from negligence, claims for such damage should be allowed and certified to the Congress for payment under the act of Dec. 28, 1922 (42 Stat. 1066, 31 U.S.C. 215) 58-63

VI. LICENSEES AND INVITEES

A visitor entering a national park maintained by the United States for the benefit of the public has the legal status of an invitee. 59-562

The Government is under a legal duty to exercise reasonable care for the safety of an invitee. 59-562