longevity pay, as authorized by law for the Reserve forces of the United States and that midshipmen, chief warrant officers, warrant officers, nurses, and enlisted men of the Naval Reserve, including those on the honorary retired list, when employed on active or training duty with pay, shall receive the same pay and allowances of personnel of the Regular Navy. Section 309 of the act established an honorary retired list for officers and enlisted men of the Naval Reserve without pay or allowances, and section 310 of the act provided for retirement of officers and men after performing the services specified therein with 50 per centum of their active duty rate of pay as prescribed in section 7 of the act.

Section 304 of the Naval Reserve Act of 1938 provides that a member of the Naval Reserve, who is injured in time of peace or dies as a result of such injury under circumstances therein specified, he or his beneficiary should have the benefits of the United States Employees' Compensation Commission as in the cases of civilian employees of the United States so disabled. Prior to the act of August 27, 1940, section 4 of which is quoted in your letter of June 12, 1941, there was no authority of law granting retirement benefits to those reservists for disability. Members of the honorary retired list of the Naval Reserve constitute part of the Naval Reserve and to the extent that the benefits referred to in question (a) pertain to matters within the jurisdiction of this office, the question is answered in the affirmative.

The purpose of the amendment to section 4 by the act of March 17, 1941, Public No. 16, 76th Congress, was to extend the benefits of the six months' death gratuity pay to the beneficiaries of members of the Naval Reserve on a substantial parity with the rights enjoyed by members of the Regular Navy as provided by the act of June 4, 1920, 41 Stat. 824, as amended. Since the benefits of the act of June 4, 1920, as amended, are specificially provided for retired personnel of the regular service who die while on active duty, similar benefits apply in the case of members of the Naval Reserve and the Marine Corps Reserve who have been transferred to the honorary retired list if they die while on the extended active duty contemplated by section 4 of the act of August 27, 1940. Question (b) is answered in the affirmative.

Section 4 of the act of August 27, 1940, provides, in pertinent part, that

All officers service days,

# who, if called or ordered into active naval or military for extended naval or military service in excess of thirty

The language was undoubtedly designed for the benefit of all members of the Naval Reserve or Marine Corps Reserve who are called

into active service for a period in excess of thirty days and necessarily would include those members who are or will be called to active duty for an indefinite period during the existing national emergency. Where the orders calling such members of the Reserve to active duty do not in terms limit the period thereof to less than thirty-one days and do not otherwise show that the active duty ordered shall be for a period of less than thirty-one days or are indefinite as to duration and otherwise show the ordered duty is during the emergency, such members are within the provisions of section 4 of the act of August 27, 1940, as amended, regardless of the date of the happening of the disability or death Question (c), is answered yes.

The grade of aviation cadet was created in the Naval Reserve and the Marine Corps Reserve by section 1 of the act of April 15, 1935, 49.Stat. 156. Section 4 of that act provided:

Aviation cadets shall, except as otherwise provided in this Act, be subject to all the laws and regulations prescribed for other members of the Naval Reserve or Marine Corps Reserve. They shall take precedence next before warrant officers of the Naval Reserve or Marine Corps Reserve: Provided, That when aviation cadets contract sickness or disease or suffer injury in line of duty while performing active duty, they may, in the discretion of the Secretary of the Navy, be retained on such active-duty status beyond the specified date of termination thereof.

The act of April 15, 1935, was amended in certain respects not here material by the Naval Aviation Reserve Act of 1939, 53 Stat. 819. Under section 8 (d) of the later act they may be required to serve on active duty for a continuous period of four years from the date of appointment as aviation cadet.

Under section 305 of the Naval Reserve Act of 1938, 34 U. S. C. 855d, Merchant Marine cadets and midshipmen are authorized to be appointed to serve during the pleasure of the Secretary of the Navy. Under Naval Reserve regulations, preliminary to appointment as midshipmen, U. S. Navy Reserve, enlistments are required to be made in the rating of apprentice seamen and appointments therein under the regulations are made only during times of threatened emergency in accordance with instructions issued by the Bureau of Navigation in separate publications. Members of the Merchant Marine Reserve may be authorized to perform the training duty authorized for members of other branches of the Naval Reserve. Therefore under section 4 of the act of August 27, 1940, as amended, members of the Naval Reserve holding grades of aviation cadet, and Naval Reserve midshipman are entitled to the same benefits as other members of the Naval Reserve. Inasmuch as the Merchant Marine Reserve constitutes part of the Naval Reserve, Merchant Marine Reserve cadets also come within the benefits of the act. Accordingly, to the extent that the benefits referred to in question (d) relate to matters of which this office has jurisdiction, the question is answered in the affirmative.

(B-19202)

REAL ESTATE-ACQUISITION OF EASEMENTS OR RIGHTS-OF-WAYTITLE REQUIREMENTS

Where, in connection with the acquisition of easements or rights-of-way, the Attorney General waives the requirement for his title opinion, the Bonneville Power Administration may purchase easements under the Authority of the Bonneville Project Act of 1937 without obtaining perfect title, and need only obtain such title as in its judgment will protect the interests of the Government, but such discretion may not transcend the limits imposed or contemplated by the legislation authorizing the acquisition or be exercised in an arbitrary or unreasonable manner, and would not justify payments to persons having no color of right, interest or title in the land to convey. Where, in connection with the acquisition of easements or rights-of-way by the Bonneville Power Administration, the Attorney General waives the requirement for his title opinion, the Administration in support of its payments therefor need obtain only such title evidence as, in its judgment, is warranted in the particular case, but should furnish a showing of waiver by the Attorney General, an appropriate administrative statement of the payee's claimed interest in the land, and the evidence reasonably relied on by the Administrator in verification of the payee's claim of interest. Comptroller General Warren to the Secretary of the Interior, August 13, 1941: I have your letter of July 26, 1941, in part as follows:

Section 355 of the Revised Statutes (40 U. S. C. § 255), which requires Federal agencies purchasing any site or land for the purpose of erecting a "public building" thereon to obtain the Attorney General's opinion as to the "validity" of the title to the site or land before expending public funds for the acquisition or improvement thereof, was amended by the act of October 9, 1940, Chapter 793 (54 Stat. 1083), to provide among other things that:

the Attorney General may, in his discretion, waive the requirement for his opinion in connection with the acquisition or improvement of easements and rights-of-way when in his opinion, such waiver will not jeopard

ize the interests of the United States."

In view of this amendment the Bonneville Power Administration desires your opinion on two questions in connection with its acquisition and improvement of easements and rights-of-way pursuant to the Bonneville Act (act of August 20, 1837, 50 Stat. 731, 16 U. S. C. § 832). Both of these questions concern the procedure to be followed by Bonneville in the event that the Attorney General, in his discretion, waives the requirement for his opinion as to the easements being acquired. The questions are as follows:

1. Assuming such a waiver by the Attorney General, must Bonneville in its purchase of easements under the Bonneville Act in all cases obtain substantially perfect title to its easements, regardless of cost and regardless of the limited needs of the Government; or, may it purchase such title to the easements as, in its judgment, will protect the interests of the Government?

2. If you conclude that when the Attorney General waives the necessity for his opinion, the Bonneville Act permits Bonneville, in appropriate cases, to purchase easements without obtaining substantially perfect title thereto, must Bonneville, nevertheless, in every case obtain full and complete evidence of the condition of the record title it is getting regardless of the cost and lack of practical need for doing so; or, under the Bonneville Act, may Bonneville obtain only such title evidence as, in its judgment, is warranted in the particular case?

These questions arise in connection with the purchase of easements in the course of Bonneville's own construction program and also in connection with the purchase of the properties of privately owed utilities. I believe that an ontline of the circumstances surrounding these two types of easement purchases will be helpful to your consideration of the questions being asked.

A large part of the land across which easements are obtained for the construction of Bonneville's transmission lines is of extremely low value. In the desert areas of Eastern Oregon and Washington, for example, much of the

land is covered with sagebrush and at best is useful only for grazing. In the Western areas the transmission lines cross dozens of miles of logged off waste lands. Such lands can be purchased outright for $5.00 to $10.00 an acre. When it is considered that the transmission lines usually have a minimum clearance in excess of thirty feet and that the poles or structures are located from 800 to 1,200 feet apart, it is apparent that interference with normal use of the lands is negligible. It has therefore been possible to purchase easements across such lands for a nominal consideration.

Unfortunately, however, the owners of such low-value land frequently give little attention, and less money, to the condition of their titles. For example, in dozens of cases there has been failure even to record the original patent from the Government. With respect to such low-value lands, the cost to Bonneville of obtaining complete evidence of record title and purchasing easements only when title is clear or has ben perfected has been unduly high, exceeding many times over the consideration paid to the owner.

Consider, for example, Bonneville's experience to March 31 of this year on the Condit-Glenwood line in Klickitat County, Washington. This line was constructed prior to the above quoted amendment to section 355 and the easement costs thereof are an example of the costs of obtaining complete title evidence showing conveyance of "valid" title to the Government as formerly required by section 355. An easement right-of-way 7.84 miles long, containing 47.71 acres and involving 42 separate tracts, was acquired. Easements were acquired from landowners in most cases for a consideration of $5.00, the total consideration for all easements being $290.00. Title certificates, under the prevailing contract price of $30.00 a tract, amounted to $1,260.00. In order to secure curative data necessary to make sure that "valid" title to the easements was obtained and in order to prepare the required closing papers, the time of an attorney and a stenographer was required for approximately forty-two days. Including travel expense and per diem, the title cost chargeable to this curative and closing work, exclusive of office overhead, amounted to approximately $630.00. The total cost of title work, therefore, was $1,890.00, for easements costing $290.00. Even assuming that the unavoidable cost of preparing the closing papers and obtaining their execution amounted to $10.00 an easement, which it probably did not, the Government was required to expend five times as much to satisfy itself that it was getting title which in the Attorney General's opinion was "valid" as it paid for the easement rights obtained.

"Even where lines are constructed across valuable farm lands, easements can usually be acquired at very low prices in comparison with ordinary title costs, because, except at pole or structure locations, the easement does not interfere with normal use of the land for farming. Out of 809 cases unclosed on December 31, 1940, options had been obtained in 603, or more than 742%, to purchase easements for less than $100.00. To protect such small investments the Government has been forced to spend an average of $21.63 for all title certificates and an average of $33.06 for all title work, a total of $54.69 for each easement. "Privately owned utility companies have long recognized the folly of spending substantial sums for investigation of title to land across which right-of-way easements are desired. It is an almost standard practice in the industry to buy easements on the basis of only the sketchiest title investigation, and some times without any investigation at all. The universal experience of the private companies indicates that their business judgment has been good. Little if any loss has resulted, and the savings over the cost of obtaining complete title evidence and perfecting title are tremendous. We are advised that the practice and experience of the American Telephone and Telegraph Company and its affiliated companies is similar.

In addition to acquiring from landowners right-of-way easements for the construction of new lines, Bonneville has already purchased existing transmis sion lines, including easements therefor, from two privately owned utility companies, and is now conducting negotiations for the purchase of the transmission facilities of several other companies. In the case of one of the companies with which negotiations are pending, approximately 18,000 easements will be transferred to the Government if the sale is effected. Like most other such companies, this company acquired these easements without extended title searches. and many of its titles are doubtless imperfect. However, its lines are in existence and operation, and have been for years. Indeed, the easements have been in the quiet but adverse and notorious possession of the company for considerably in excess of the statutory period for bringing actions for possession.

The records of the companies are open to the Government. No adverse or paramount claims are being asserted against the easements.

If another private company were buying these lines, it would take title to these easements on an "as is" basis. If Bonneville must obtain complete title evidence and purchase the easements only when it considers title unquestionable, it will have to spend the necessary sums itself since the selling company has advised us that it will not undertake to convey perfect title. Bonneville's purchase of certificates or abstracts of title and its efforts to cure all defects in the titles to the easements will involve an expenditure of approximately $1,000,000. The judgment and experience of the utility industry shows that this expenditure of public funds would be wholly unwarranted. Moreover, if Bonneville must follow such a course, the time needed to obtain and examine complete title evidence and to cure all defects will involve a consequent delay in payment for the property which will seriously jeopardize the consummation of the sale.

The foregoing discussion should make it plain that as a practical matter in buying the low-cost easements it needs for the construction of new lines, Bonneville should follow the title practices that are standard in the utility industry. That is, Bonneville should examine the tax rolls and perhaps the last deed of record, and should question the persons in possession of the land. It should then accept a warranty deed subject to such outstanding interests or infirmities as the Administrator has discovered and in his discretion has waived as not prejudicial to the best interests of the Government. This procedure should not be inflexible. Obviously, less title expense should be incurred when the price paid for the easement is small, and more title expense should be incurred when the price paid for the easement is substantial; there will be times, especially when a large sum is being paid for an easement, when Bonneville clearly should obtain complete title certificates or abstracts and cure all title defects.

It should also be plain that in buying an existing utility system, Bonneville should accept the company's lines, including the titles to its easements, as they are. Indeed it would seem particularly unwise to insist on the discovery and removal of every title defect in these purchases, since to do so would involve ferreting out the holders of clouds on the titles to the selling company's easements and inviting them to present claims which otherwise they might have allowed to be dormant.

Before leaving this discussion, it is important to point out that in buying easements on this basis, Bonneville would not be taking substantial risks. As has already been said, the experience of the utility industry shows that few, if any, of the titles to Bonneville's easements would ever be questioned. This is because in a great majority of cases the landowner's use of the land is not materially prejudiced by the presence of the transmission line. It is an observed fact that when the ownership of land passes, for example, from mortgagor to mortgagee, or from vendor to vendee, the new owner does not ordinarily question the presence on the land of an electric power line. This is, of course, particularly true in the case of low-value lands since the small amount of money involved in these cases does not justify the new owner in bringing legal proceedings against the owner of the power lines.

However, in the improbable event that a hidden defect in the title to Bonneville's easement should be asserted at a future time, several protections would still be available to Bonneville. In the first place, to the extent that the defect was not excepted therefrom, Bonneville could recover against the seller on his warranty. In the second place, if the claimant asserted his right on the basis of an unrecorded interest, Bonneville would have the protection of the recording acts. In the third place, Bonneville could rely on the statute of limitations and would succeed to any protection thereunder which the original vendor of the easement may have had. In the fourth place, Bonneville could make any equitable defenses which the original vendor may have had against the assertion of the outstanding interests. In the case of the acquisition of an existing system this would be a particularly valuable right since it is the duty of the claimants promptly to make their interest known as soon as the line is constructed and easement thereby made open and notorious. Nittany Valley R. Co. v. Empire Steel and Iron Co., 218 Pa. 224; 67 Atl. 349 (1907). Lastly, it should be noted that where the Government constructs transmission lines its purchase of an easement likewise becomes open and notorious, enabling it to make equitable defenses in addition to those which the original vendor may have had.