Findings of Fact 118 C. Cls. the south bank of the Kansas River for the protection of a pipeline intake leading to the Sunflower Ordnance Plant, where it is shown by the evidence that the levee was not the cause of the loss of plaintiffs' land; it is held that there was no taking of the land within the meaning of the Fifth Amendment and the plaintiffs are not entitled to recover. Eminent Domain 98 Same. Any liability on the part of the United States for damages or a taking under the Fifth Amendment must be established by a proper showing that the action of the United States was the cause of loss. Sanguinetti v. United States, 264 U. S. 146, and other decisions cited. Eminent Domain 93 The Reporter's statement of the case: Mr. James M. Desmond for the plaintiffs. Messrs. Reed O. Gentry, Clay C. Rogers, Jack B. Robertson, Mosman, Rogers, Bell, Field & Gentry, Roy B. Kelly and Hardy, Reasoner & Kelly were on the brief. Mr. Walter H. Williams, with whom was Mr. Assistant Attorney General A. Devitt Vanech, for the defendant. Mr. Marion T. Bennett, Trial Commissioner. The court made special findings of fact as follows: 1. In 1925 Herman E. Yazel and Myrtle F. Yazel purchased approximately 220 acres of land, fronting on the north bank of the Kansas River, a navigable waterway of the United States in Leavenworth County, Kansas. This land is more particularly described in the deed as follows: East one-half (E2) of the Southwest Fractional Quarter, and the Southeast Fractional Quarter (SE) of Section Eighteen (18); also Lot Five (5) or the Northeast Fractional Quarter (NE1⁄44) of Section Nineteen (19), all in Township Twelve (12) South of Range Twenty-two (22) East of the Sixth P. M., except Union Pacific Right of Way, containing Two Hundred Twenty (220) acres, more or less. 2. On December 8, 1943, the plaintiffs purchased approximately 96 additional acres contiguous to the purchase of 1925, and described in the deed as follows: 59 Findings of Fact The West one-half (W2) of the Southwest one-fourth (SW4) except the Union Pacific Right of Way and except the Right of Way of the Public Road now known as Highway Thirty-two (32) in Section Seventeen (17), Township Twelve (12) Range Twenty-two (22) and the West one-half (W12) of the Northwest one-fourth (NW4) Fractional in Section Twenty (20) Township Twelve (12) Range Twenty-two (22), except the Union Pacific Right of Way. Until February 16, 1948, the plaintiffs remained the sole owners of the property bought in 1925 and 1943 and here described. 3. The land formerly owned by the plaintiffs is located on the north bank of the Kansas River. The river flows toward the east past the plaintiffs' land. As the river approaches that land its course is almost directly north through the East one-half (E12), Section Twenty-four (24), Township Twelve (12) South, Range Twenty-one (21) East, to Section Thirteen (13) in that township, where it makes a sharp turn to the east. From that turn it flows east for about onehalf mile and then southeast. From about the point where the river turns southeast, it flows past the plaintiffs' land. The Union Pacific Railroad follows the north bank of the river in its east course, continues east beyond the point where the river turns toward the southeast, and then follows about the same southeast direction as the river. The land which is the subject of this case lies between the apex formed by the river and the railroad on the west, the eastern boundary of the plaintiffs' land on the east, the river on the south and the railroad right-of-way on the north. That land includes the Northeast Fractional one-quarter (NE1⁄4), Section Nineteen (19), and the part of the Southeast Fractional one-quarter (SE) and the East one-half (E2) Southwest Fractional one-quarter (SW) lying riverward of the railroad, Section Eighteen (18), which was purchased in 1925, and the West one-half (W2) Northwest Fractional one-quarter (NW), Section Twenty (20), and the West onehalf (W12) Southwest one-quarter (SW1⁄44) lying riverward of the railroad, Section Seventeen (17), which was purchased in December 1943. Unless otherwise noted, all ref 941207-51-12 Findings of Fact 118 C. Cls. erences to the plaintiffs' land hereafter made will be to that area. 4. Part of the water supply for the Sunflower Ordnance Plant built by the defendant is obtained from the Kansas River. A pipe line was built running from the main buildings located several miles south of the Kansas River to an intake structure situated on the south bank of the river, about one-quarter mile downstream from the east boundary of the plaintiffs' land. 5. In June 1943, the Kansas River threatened to flood. For the purpose of protecting the water pipe line and a road leading to the intake structure, and not as a part of a navigation project, an earth levee was thrown up on the south side of the river to keep flood waters off of the flood plain in that area. Beginning at the intake structure and generally following a contour several hundred feet back from the river, the levee ran west until it approached the sharp turn of the river. The levee then turned southwest for a very short distance. A much shorter levee running southeast from the intake structure was built at the same time. The levees, hereafter referred to as the levee, were in place before the high stages of the 1943 flood were reached. The elevation of the base of the levee was 790 feet above sea level or higher, except for one dip to 789.7 feet. 6. Prior to 1943, the elevation of most of the plaintiffs' land was 785 feet. Near the river the elevation was 780 feet, and within a short distance rose to 785 feet. The highest elevation between the railroad right-of-way and the river was 786.7. The elevations above 785 were all landward of the 785 contour. Since the plaintiffs' land was approximately five feet lower than the base of the levee the construction of the levee on the south side of the river did not have any direct effect upon the frequency of floods on the plaintiffs' land. The Kansas River floods almost annually and the plaintiff's land was subject to these floods except for irregular intervals of three to four years. 7. Prior to 1943, the river bank of the plaintiffs' property formed almost a straight line. On the bank grew numerous trees. Just upstream and near the plaintiffs' land and at the same bend of the river, however, there was, prior 59 Findings of Fact to 1943, evidence of erosion and a tendency to cave along the bank of the river. As early as 1930 the Union Pacific Railroad recognized that bank protection was necessary immediately above the plaintiffs' land on the bend of the river and installed jetties to prevent cutting of the bank. The Kansas River is an alluvial stream, one of the characteristics of which is erosion of its banks due to the meandering course of the stream sometimes referred to as a sinuous flow. The banks of such a stream, having been stable for many years, may, after prolonged exposure and saturation due to flood conditions, suddenly collapse. In 1940, forty miles of the 160 miles of the Kansas River were determined by the Army Engineers to be active in various degrees of erosion. 8. When the Kansas River flooded in June 1943 the water on the plaintiffs' land was deeper than it had been in many years. The height of the crest of the flood was measured at a gauge maintained at the intake structure of the Sunflower Ordnance Plant. At that point the crest of the flood was at elevation 791.8 feet. At a point upstream about midway between the east and west boundaries of the plaintiffs' land the elevation of the crest of the flood was 793 feet. The river was against the banks of the plaintiffs' land at elevation 776 feet or higher for a period of 19 days. The levee on the south side of the river was not touched by the flood until the water had reached an elevation of about 790 feet. The plaintiffs' land was under water about eight days during that flood and of that time was submerged to depths up to 5 feet for approximately 5 days when there was no water on the levee. The flood was against the levee for about 3 or 32 days. At the crest of the flood at elevation 793 feet, the plaintiffs' land was submerged to a depth of about 7.5 feet. If the levee had not been in place the crest of the flood would have been 5 inches lower, or elevation 792.6 feet, and the plaintiffs' land would have been under water to a depth of about 7.1 feet. Velocity of the water over the plaintiffs' land during the 3 days that the water was against the levee was about one foot per second. Had the levee not been in place during that time the velocity would have been reduced .04 of a foot per second. Findings of Fact 118 C. Cls. 9. During the last week of April and the first week of May 1944, another flood occurred on the Kansas River, the height of the crest being measured at the intake structure at 791.6 feet. At a point upstream about midway between the east and west boundaries of the plaintiffs' land, the elevation of the crest of this flood was 792.8 feet. The river was against the banks of the plaintiffs' land at elevation 776 feet or higher for a period of 27 days. The plaintiffs' land was under water 7 days and submerged to a depth up to 5 feet for about 5 days when there was no water touching the levee. The flood was against the levee 2 or 3 days. At the crest of the flood at elevation 792.8, the plaintiffs' land was submerged to a depth of about 7.3 feet. Had the levee not been in place the crest of the flood would have been about 5 inches lower, or elevation 792.4, and the plaintiffs' land would have been submerged to a depth of about 6.9 feet. The velocity of water over the land during the 2 or 3 days that it was against the levee was about one foot per second and had the levee not been in place during that time the velocity would have been reduced about .04 of a foot per second. 10. In April and May 1945, the Kansas River flooded again. The height of the crest of the flood measured at the intake structure was 791.9 feet. At a point upstream, about midway between the east and west boundaries of the plaintiffs' land, the elevation of the crest of the flood was 793.1 feet. The river was high against the banks of the plaintiffs' land at elevation 776 feet or higher for more than 42 days. The plaintiffs' land was under water a total of about 11 days and was submerged to a depth up to 5 feet for 9 days when there was no water touching the levee. The flood was against the levee 2 or 3 days. At the crest of the flood at elevation 793.1 the plaintiffs' land was submerged to a depth of about 7.6 feet. If the levee had not been in place the crest of the flood would have been about 5 inches lower, or elevation 792.7 feet, and the plaintiffs' land would have been submerged to a depth of 7.2 feet. The velocity of the water over the land during the 2 or 3 days that the water was against the levee was about one foot per second, and if the levee had not been in place during that time the velocity |