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This matter was previously before the Comptroller, and was returned February 13, 1895, for further information.

The attorney for the claimants calls especial attention to the decision rendered by Assistant Comptroller Mansur, December 14, 1894 (1 Comp. Dec., 107), in the matter of the bridge constructed by one Baronett across a stream within the Yellowstone National Park, but prior to the creation of the park. For many years Baronett had collected tolls from travel over this bridge. It was admitted that such a bridge was a necessary and proper improvement at this point, and the question submitted to this office was whether this bridge could be bought and paid for from an appropriation "For the improvement of the Yellowstone National Park, to be expended by and under the direction of the Secretary of War," or whether it would be necessary for the Secretary to construct a new bridge and pay for the same out of this appropriation. Comptroller Mansur said:

"I am of the opinion that the language of the specific appropriation is broad enough, fairly construed, to vest in you a discretion to purchase an improvement already made, as well as to expend money in the erection of an improvement that commends itself to your judgment as being necessary.”

In this position I fully concur, but this opinion was based upon the assumption that this bridge was the private property of Baronett, and that he was accordingly in a position to make a contract to sell it to the Government. Under the terms of the various acts creating this Hot Springs Reservation fund and granting you authority over the same, I have no doubt but that it would be within your power to purchase an improve. ment already existing belonging to private parties, as well as to construct such improvement. But the facts in this case preclude such action, for it appears that the improvement was made by the voluntary contributions of the claimants, and that at the time this sewer was laid it was known by them to be npon the Government reservation and that the permission granted them to lay it was not to be regarded as any implied promise on the part of the Government to make payment therefor.” Accordingly the sewer became a fixture; so attached to the freehold that it lost its character of personalty and became a part of the realty. The claimants therefore have no ownership in this improvement and have no right to remove it or otherwise affect it without the consent of the United States. They were granted a mere license to construct the sewer upon this land, from which the Government and the parties contributing have obtained mutual benefit from the use of the sewer. By this conversion of the property from personalty to realty they have ceased to be in a position to sell the improvement; hence the Government can not enter into a contract to purchase it. The law is well settled that where one makes inprovements upon realty, with the permission of the owner, there is an implied promise on the part of the owner, to permit the improvements to be removed by the person making them; but this is subject always to the condition that the fixture may be severed from the freehold without damage to the freehold, and that the fixture must retain its essential characteristics as a personal chattel and not become appurtenant to the freehold.

In the case of Tift v. Martin (58 N. Y., 380) it was stated: “It is well settled that chattels may be annexed to real estate and still retain their character as personal property. Of the various circumstances which may determine whether in any case this character is or is not retained, the intention with which they are anuexed is one, and if the intention is that they shall not by annexation become a part of the free. hold as a general rule they will not. The limitation to this is where the subject or mode of annexation is such as that the attributes of personalty can not be predicated of the thing in controversy, as when the property could not be removed without practically destroying it, or where it or part of it is essential to the support of that to which it is attached."

In Capen v. Peckham (35 Conn., 88) it is well stated on page 94:

“ It is exceedingly difficult to lay down any rule of universal application upon this subject; but one, perhaps, that comes nearer to it than any other is that it is essential to constitute a fixture that the article should not only be annexed to the freehold, but that it should clearly appear from an inspection of the property itself, taking into consideration the character of the annexation, the nature and the adaptation of the article annexed to the uses and purposes to which that part of the building was appropriated at the time the annexation was made, and the relation of the party making it to the property, indicating that a permanent acquisition to the freehold was intended to be had by the aunexation of the article. This rule is in harmony with many cases. * * * This rule shows the reason why it is held in many cases that it is essential to constitute a fixture that the annexation should be so permapently made that the article could not be removed without

injury to the freehold, for it is easy to see that in a great majority of cases the intention of the party to make a permanent acquisition to the freehold can only be shown by the character of the annexation." (See also Ford v. Cobb et al., 20 N. Y., 344-350.)

It is difficult to conceive of any property more choroughly affixed to the realty than is a sewer. It is buried beneath the ground, and to remove it not only disturbs and impairs the value of the realty, but destroys the value of the removed property itself. Moreover, it is apparent from the circumstances under which this improvement was made that it was the intention of the parties contributing for it that it should remain there, both from its permanent character and because they were expressly notified that no promise on the part of the Government to repay them would arise from the permission granted them. I must therefore advise you that in my opinion you are not authorized to reimburse these parties for this improvement in the absence of any legal title or claim on their part. Whatever may be their equitable claims, it does not lie within the power and authority of an executive officer to recognize them and to attempt to do equity. That power rests with Congress, where these claimants must look for relief if they be entitled to it. Respectfully, yours,


Acting Comptroller. The SECRETARY OF THE INTERIOR.


The allotment, from the Agricultural Department appropriation for the

purchase and distribution of seeds, of the sum of $50,000 for the preparation and publication of farmers' bulletins is intended to cover all expenses connected with such bulletins, including their distribution in the manner therein provided, and no more than $50,000 of the appropriation can be used for that purpose.


September 18, 1895. SIR: I am in receipt of your letter of the 16th instant in reference to the use of the appropriation “ Purchase and distribution of valuable seeds, 1896." Said appropriation is found in the act making appropriation for the Department of Agri

culture, approved March 2, 1895 (28 Stat., 733), and is, in part, as follows:

“Division of Seeds: Purchase and distribution of valuable seeds, and for the printing, publication, and distribution of farmers' bulletins: For the purchase, propagation, and distri. bution, as required by law, of valuable seeds, * * * one hundred and eighty thousand dollars."

After providing the manner in which seeds shall be distributed among the Members of Congress, there is the following clause:

“And the Secretary of Agriculture may use not to exceed fifty thousand dollars of the amount herein appropriated for the preparation, printing, and publishing of farmers' bulletins, which shall be adapted to the interests of the people of different sections of the country, an equal proportion of two-thirds of wbich shall be supplied to Senators, Representatives, and Delegates in Congress for distribution among their constituents as seeds are distributed: Provided, That the Secretary of Agriculture shall notify Senators and Representatives of the character and number of each bulletin and each other publication of the Department of Agriculture (not sending to the folding room of the Senate and House) to which each Senator and Representative may be entitled for distribution on the basis herein provided for the distribution of bulletins."

You ask whether, in view of the fact that none of the $50,000 appropriated for farmers' bulletins is provided for distribution, you will be authorized in using such part as may be necessary of the total sum of $180,000 in distributing the bulletins, retaining the $50,000 for the expenses of preparation, printing, and publishing. You state that the work incident to the distribution of the large issue of these bulletins is great, involv. ing the handling of each copy separately, placing it in an envelope, and, when addresses are furnished by Congressmen, the labor of addressing the envelopes. · While the clause authorizing you to use $50,000 in the “preparation, printing, and publishing of farmers' bulletins" does not specifically provide that all the expenses connected with the issue of such publications, including the distribution, shall be paid from that fund, the heading of the appropriation is “ For the printing, publication, and distribution of farmers' bulletins," and I am clearly of the opinion that it was the intention of Congress that all expenses incurred by your Department in connection with the issue and circulation of the farmers' bulletins should be paid from the fund of $50,000 set apart for that purpose.

It is required that the bulletins shall be supplied to Members of Congress for distribution among their constituents as seeds are distributed, and it is provided that seeds shall be directed and mailed by the Department upon their request." To "supply" the bulletins to Members of Congress would seem to require that they be “directed and mailed” as seeds are, when so requested.

I have the honor, therefore, to advise you that of the appropriation “Purchase and distribution of valuable seeds, 1896,” not more than $50,000 can be used for all expenses incurred in the preparation, printing, publishing, and distribution of farmers' bulletins. Respectfully, yours,




The head of a Department may assign the clerks and employees provided

by law for his Department to such work therein as, in his discretion, he may deem proper.


September 20, 1895. SIR: I am in receipt of your letter of this date referring to my decision of the 18th instant (ante, p. 171) construing that portion of the act of March 2, 1895, providing for the preparation, printing, and publishing of farmers' bulletins. You ask whether the statutory roll of employees in the seed division of your Department may be employed in “mailing and directing farmers' bulletins," and whether the chief of that division may be legally retained and so employed.

The appropriation contained in the act of March 2, 1895, for salaries of the Department of Agriculture, provides for a chief and certain clerks and employees of the division of seeds during the present fiscal year, a sufficient sum being appropriated to pay their salaries until June 30, 1896. Under this appropriation the appointment and retention of this chief and these clerks and employees is authorized for the current fiscal

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