Opinion of the Court 118 C. Cls. and the floods in April-May 1945 caused very little, if any, loss of land. There is no evidence that any caving or loss occurred after 1945. From 1943 to 1946, the topsoil on approximately 60 acres of the total area owned by the plaintiffs after December 1943 was washed away in varying degrees, although in 1949 the evidence established that the land had the same amount of topsoil as low river-bottom land elsewhere in the area. With proper management the land would grow a crop in those years when the land was not flooded and an ordinary flood would reduce the crop yield at least one-half. The evidence does not establish the amount of the topsoil loss which occurred in 1943 before the plaintiffs owned all the land or how much occurred in 1944 and, subsequent years. According to the evidence, that portion of the land which was lost to the river was of a quality capable of producing an average yield of 40 bushels of corn per acre. This land was worth approximately $100 per acre in 1944 and $153 per acre in 1948, the increase in value reflecting the general rise in the price of all farm lands. Plaintiffs' contention is that prior to the construction of the levee by the defendant the current of the river during flood stages was in the center of the river and against the south bank, and that there was a flood plain two and one-half miles wide behind the south side of the river over which the waters flowed in flood stages. Plaintiffs further maintain. that numerous floods had, by deposit of silt on plaintiffs' land, erected a natural dike or levee along the river bank which was higher than the elevation of their land back of the socalled natural levee. As a consequence of the construction of the levee, plaintiffs say that the flood waters which had formerly flowed over the south bank were directed against their land; and furthermore, that whereas the current of the river had previously been in the center of the river and against the south bank, the presence of the levee forced the current against the north bank destroying the natural levee, and creating an unnatural flood plain. Plaintiffs further maintain that the bank line of their land had been previously stable, but after the construction of the levee many acres were 59 Opinion of the Court washed away and the topsoil lost, all of which was the result of the construction of the levee. Thus we are called upon to decide whether or not there was a taking of the plaintiffs' land by the defendant as a result of the construction of the levee. A review of the evidence which supports our findings of fact, leads us to the conclusion that the levee constructed by the defendant was not the cause of the loss of plaintiffs' land, and consequently that there was no taking of the land for which the defendant is obliged to respond in damages. As previously stated, the elevation of most of plaintiffs' land prior to 1943 was 785 feet, 5 feet lower than the base of the levee. The levee prevented the overflow of the south bank only when the stage of the river was above 790 feet and plaintiffs' land was already under 5 feet of water. The levee did prevent a comparatively small percentage of water from overflowing the south flood plain of the river in the floods of 1943, 1944, and 1945 and increased the depth of the flood over plaintiffs' land at their crests by about 5 inches and increased the velocity of the water to a slight degree which was not shown to have caused any damage. At the times of these floods, plaintiffs' land, as has been previously pointed out, would have been under approximately 7 feet of water had the levee not been in existence. We do not find that the plaintiffs' contention with reference to the change in the direction of the river's main current has been sustained by the evidence, but, on the contrary, we find that both before and after the levee was built the direction of the river's main current past the plaintiffs' land was from the right of center to and against the north bank. Furthermore, there is no satisfactory evidence that the levee increased the duration of the floods, nor their frequency. Any liability on the part of the United States for damages or a taking under the Fifth Amendment of the Constitution must be established by a proper showing by the plaintiff that the action of the United States was the cause of the loss. In Sanguinetti v. United States, 264 U. S. 146, the Government had constructed a canal and when its capacity proved insufficient to carry away flood waters, plaintiff's land along Opinion of the Court 118 C. Cls. the canal was overflowed. The land would have been overflowed without the canal. The court denied recovery stating: in order to create an enforceable liability against the Government, it is, at least, necessary that the overflow be the direct result of the structure, and constitute an actual, permanent invasion of the land, amounting to an appropriation of and not merely an injury to the property. * The most that can be said is that there was probably some increased flooding due to the canal and that a greater injury may have resulted than otherwise would have been the case. But this and all other matters aside, the injury was in its nature indirect and consequential, for which no implied obligation on the part of the Government can arise. Proof of damage alone does not necessarily prove a taking. Cf. Horstmann Co. v. United States, 257 U. S. 138; Southern Pacific Co. v. United States, 58 C. Cls. 428, 432, aff'd. 266 U. S. 586. The well established doctrine on the subject of what constitutes a taking for which the Government must pay just compensation is set out in Matthews, Trustee v. United States, 87 C. Cls. 662, 720-721: Only consummated acts which actually deprive an owner of property or of valuable existing property rights, or acts so definite in character as to show a clear intention to take the property or property rights, or to place thereon such a permanent servitude not theretofore existing as will deprive the owner of the actual or profitable use thereof, can be held the basis of an implied promise to pay. Gibson v. United States, 166 U. S. 269; Bedford v. United States, 192 U. S. 217; Manigault v. Springs, 199 U. S. 473; Peabody v. United States, supra; Portsmouth Harbor Land & Hotel Co. et al. v. United States, supra; Wm. Wrigley, Jr., Company v. United States, 75 C. Cls. 569. See also Braeburn Alloy Steel Corporation v. United States, 95 C. Cls. 343, 353; Houze Glass Co. v. United States, 81 C. Cls. 661, 669. We conclude from the evidence that flood waters standing upon the plaintiffs' land for long periods of time caused Syllabus the soil to disintegrate, as soil in that locality is prone to do. The construction of the levee by the defendant had no effect on the normal flow of the river and did not itself cause plaintiffs' land to be flooded. While it is true that there was a slight increase in the current of the flood waters and the depth of the water upon plaintiffs' land at crest stages, those things were not shown to have caused any damage or destruction to plaintiffs' land which otherwise would not have occurred. Upon the facts disclosed by the record and under the decisions cited, we are of the opinion that there has been no taking by the United States of plaintiffs' property or property rights for which recovery can be had under the Fifth Amendment. Plaintiffs' petition is therefore dismissed. It is so ordered. MADDEN, Judge; WHITAKER, Judge; LITTLETON, Judge; and JONES, Chief Judge, concur. SAFEWAY STORES, INCORPORATED, v. THE UNITED STATES [No. 46976. Decided December 5, 1950] * On the Proofs Eminent domain; just compensation; amount of compensation due for meat taken during World War Two.-Where the United States, by proper set-aside orders, required the plaintiff, operating a chain of retail stores, to hold for the defendant's use certain meat selected by Government agents; and where plaintiff was required to comply under heavy penalties of fine and imprisonment and the revocation of its license to do business; and where defendant issued purchase orders for the meat finally selected, stating the amounts and fixing the price to be paid therefor; and where plaintiff protested against the price, reserving its legal rights; it is held that the action of the Government constituted a taking of the plaintiff's property under the Fifth Amendment and plaintiff is entitled to recover. War and National Defence 14 *Defendant's and plaintiff's petitions for writs of certiorari denied. Findings of Fact 118 C. Cls. Same; plaintiff not entitled to retail ceiling price.-Where the Government, for its own use, began taking meat during the war and plaintiff, a retail merchant, bought up packing plants in order to supply its customers; and where the Government paid the wholesale ceiling price established by the Office of Price Administration for the meat taken from plaintiff; it is held that plaintiff's contention that it was entitled to the retail ceiling price cannot be sustained. War and National Defence 14 Same; controlling decisions cited.-The instant case is controlled by the opinions of the Supreme Court in United States v. Felin & Company, 334 U. S. 624, and United States v. Commodities Trading Corporation, 339 U. S. 121. War and National Defence 14 Same; subsidy to meat packers.-Where it is shown that all packers were paid a certain subsidy by the Government, over and above the wholesale ceiling price, because of the fact that they had to buy live cattle on a market in which the defendant had found it impracticable to fix controls and the packers then had to sell the products therefrom in a controlled market; and where it is shown that a further subsidy was granted to compensate nonprocessing packers who did not sell byproducts; and where it is shown that plaintiff was denied this latter subsidy because it had a retail outlet; it is held that plaintiff is entitled to recover no less than this latter subsidy on the meat which it did not sell at retail but which was taken by the Government. War and National Defence 14 Same; amount of judgment.-Just compensation to the plaintiff is not less than the wholesale ceiling price, which has been paid to plaintiff plus the amount of the subsidy all other nonprocessing packers without retail outlets were paid. Judgment for $267,779.74. War and National Defence 14 The Reporter's statement of the case: Mr. Elisha Hanson for the plaintiff. Messrs. Hanson, Lovett & Dale were on the briefs. Mrs. Mary K. Fagan, with whom was Mr. Assistant Attorney General H. G. Morison, for the defendant. Mr. Currell Vance, Trial Commissioner. The court made special findings of fact as follows: 1. The plaintiff, Safeway Stores, Incorporated, is now and was at all times pertinent to the issues of this case, |