Coates v. United States

110 F. Supp. 471 | Ct. Cl. | 1953

Howell, Judge,

delivered the opinion of the court:

This is an action to recover just compensation for the taking by the United States of 225.86 acres of farm land adjoining the north or left bank of the Missouri River in St. Charles County, Missouri, in 1947, and for the taking of crops in 1945 and 1947. Plaintiffs, husband and wife, seek $82,040.04 for the destruction of the crops, and $97,500.00 representing the reduction in value of plaintiffs’ farm as a result of the alleged taking. The case was previously before us on defendant’s demurrer to the petition, which was overruled, 117 C. Cls. 795, and is now before us for final determination.

Plaintiffs contend that the acts of defendant (1) increased the water surface elevation of the river at plaintiffs’ farm, thereby increasing flood stages, (2) caused an increased velocity in flood waters over plaintiffs’ land, thereby causing greater destruction to the land, and (3) that the destruction of the land and crops constitutes a taking within the meaning of the Fifth Amendment to the Constitution.

Defendant denies that its acts had the effect complained of, and contends that its acts were not the direct and necessary cause of the damage to plaintiffs’ land and crops. Defendant further contends that assuming, arguendo, an increase in the velocity of the river as a result of defendant’s acts, plaintiffs have no right to recover, as indirect and consequential damages resulting to a riparian owner from improvements to navigation placed in a navigable¹ stream by the United States do not constitute a taking of private property for a public purpose with an implied promise to pay just compensation under the Fifth Amendment. Defendant also invokes the bar of the statute of limitations, and finally urges that plaintiffs are not entitled to recover for a condition existing at the time they purchased their farm.

The land involved in this action is located near Matson, Missouri, and has about 2,400 feet of river frontage on the . north or left bank of the Missouri Biver between Mile 54 and Mile 55, i. e., between 54 and 55 miles upstream from the mouth of the Missouri Biver where it flows into the Mississippi Biver.

Plaintiffs acquired the land involved through three purchases. The initial purchase took place in November 1942, when equitable title to a tract of 120 acres was acquired. In January 1943, equitable title to a tract of approximately 39 acres was obtained. At the time of these two purchases, plaintiffs had legal title to the tracts placed in the name of others in order to facilitate the acquisition of subsequent tracts at the best possible prices. Legal title to the two tracts was conveyed to plaintiffs on May 23, 1945, and August 31,1944, respectively. On June 12,1945, plaintiffs purchased a tract of about 66 acres, of which 26 acres was bottom land. The evidence does not reveal whether this purchase was prior to or after the flood of June 1945. The three purchases constitute plaintiffs’ present farm of 225.86 acres.

The southernmost 89 acres of plaintiffs’ farm, adjoining the river, is bottom land; the remainder is hill land. The area where plaintiffs’ farm is located lies in the flood plain of the Missouri Biver. The Missouri Biver is an alluvial stream, and the soil in Darst Bottoms, including plaintiffs’ bottom lands, consists of layers of sand, clay, and silt, which have been deposited by the river over long periods of time. Prior to 1947, most of plaintiffs’ bottom land was of a rich and fertile quality. The elevation of this land at the river bank is 468 feet above mean sea level. Prior to 1942, a levee was constructed on plaintiffs’ farm by private interests. This levee has an elevation of 470 feet above mean sea level, and it has been overtopped by every major flood since its construction. The ordinary high water mark on the left bank of the river in the vicinity of plaintiffs’ farm is 465 feet above mean sea level.

Since 1890, the main current of the river has been directed against the left bank, both above and below Mile 55. As a result of the cutting action of the current, an extensive portion of what was formerly the left bank of the river has been destroyed. In 1924 the left bank of the river in the vicinity of Male 55 was more than 7,200 feet north of the line which marked the location of the bank in 1890. Since 1932, however, erosion of the left bank has been substantially prevented as a result of the construction of a revetment. This revetment was constructed partially by local interests and partially by the Corps of Engineers.

Pursuant to authority granted by Congress in the Act of July 25, 1912, 37 Stat. 201, and subsequent acts, the Corps of Engineers carried out a project for improving the navigability of the Missouri River from Kansas City to its confluence with the Mississippi.² The means used for improving the navigability of the channel consisted of revetment to fix the banks and a system of permeable dikes to contract, shape, and stabilize the navigation channel. As a part of this program approximately 1,350 permeable dikes were installed in the river between Kansas City and its confluence. A number of such dikes were installed in the river above, below, and across the river from plaintiffs’ land. Construction of the dikes in the vicinity of plaintiffs’ farm was completed between 1930 and 1936. All of the dikes involved in this action were installed on the opposite side of the river from plaintiffs’ farm. They extended out into the river nearly at right angles and varied in length from about 300 feet to a maximum of 2,259 feet.

The dikes consist of timbers about 40 feet long driven into the bed of the river, usually in clumps of two or three. The clumps are tied together with cables, and stringers used between the clumps. After the dikes had been constructed, sand bars formed downstream from each dike. Eventually the dikes became buried and created solid barriers which now constitute a new bank. The length of time ordinarily required for the formation of a sand bar below a dike varies from a few months to 10 years, and the length of time needed for dikes to become fully effective is from 10 to 15 years.

All of the dikes opposite plaintiffs’ farm were built below the ordinary high water mark of the river at the point of installation. The elevation of the highest point on any of the dikes was 462.3 feet above mean sea level, 2.7 feet below ordinary high water mark, 5.7 feet below the elevation of plaintiffs’ bottom land, and 7.7 feet below the top of the levee protecting the land.

The dikes have been effective in reducing the width of the water surface opposite plaintiffs’ land from 2,500 feet to approximately 1,300 feet, but the narrower and deeper channel which the water is forced to occupy has a capacity equal to the untrained channel during ordinary stages.

The area where plaintiffs’ farm is located has long been subject to damaging overflow. The greatest flood of record in the vicinity of Darst Bottoms occurred in 1844. The next major flood was in 1903. Thereafter there were a number of small floods, but no serious flood until 1927. What is now plaintiffs’ farm was flooded to some extent in 1927, 1928, 1929, and 1989, and was completely submerged by the floods which took place in 1935, 1941, 1942, 1943, 1944, 1945, and 1947.

The period of 1941 to 1947 was one of severe flood damage along the Missouri River, and the most severe floods from the standpoint of height and duration were those of 1945 and 1947. In April and June of each year,³ flood waters attained an elevation of 470 feet or more in the vicinity of plaintiffs’ farm, and the flood of June 1947 reached an elevation of 475.2 feet.

“When the June flood comes down the Missouri River It Is a mighty torrent. One can stand on the bluffs at Kansas City and see an enormous volume of water, extending In width from two to five miles to the bluffs on the other side of the river, flowing onward with tremendous velocity and force, * *

Sand had been deposited on the land in Darst Bottoms by the actions of floods over a long period of time, but the floods of 1943 and subsequent years were accompanied by larger deposits of sand and more extensive erosion of topsoil than ever before. The claim for the taking of land has been limited to the 1947 flood damage, as the two floods of that year were the most destructive that have ever occurred within the memory of persons living in Darst Bottoms.

As a result of these two floods, there was extensive erosion of the topsoil on plaintiffs’ bottom land, and all but approximately 30 acres of the 89 acres of bottom land were covered with a deposit of sand ranging in depth from a few inches to about three feet. Approximately 36 acres of this land has been permanently destroyed for agricultural use, and some 24 acres can be put back into production only by special treatment and at considerable expense.

Plaintiffs claim a taking of crops in 1945 and 1947. The method by which damages are sought to be established is set out in finding 21. The evidence regarding the losses of crops is vague and indefinite. It is not sufficient to show what crops were actually growing on plaintiffs’ farm at the time of the floods, or the acreage, kind, condition, or value of the crops that were washed away.

Plaintiffs contend that the dikes installed by the defendant (1) directly increased the water surface elevation of the river at plaintiffs’ farm, thereby increasing flood stages, and (2) directly caused an increase in the velocity of the flood waters over the land, which resulted in an increase in the damage to plaintiffs’ land through erosion and sanding.

With respect to their first contention, plaintiffs say that the farm was submerged to a greater extent, and for a longer period of time, than would have been the case had the dikes not been installed. We are unable to agree. Although the evidence is conflicting, it has not been established that the dikes increased the water surface elevation to the extent that the land would not have been flooded had there been no dikes, or that the floods which caused the damage complained of were the direct and necessary result of the dikes. A review of the evidence leads us to the conclusion that the damage to plaintiffs’ land and crops as a result of the height and duration of the destructive floods of 1945 and 1947 would have been substantially the same in the absence of the dikes installed by defendant.

When this case was before us on defendant’s demurrer, 117 C. Cls. 795, we said, at p. 798:

* * * if it can be shown that the activities of the defendant directly and necessarily resulted in the alleged permanent destruction of the plaintiffs’ land, then plaintiff would be entitled to recover for an invasion of a permanent and continuous character constituting a taking of private property for a public purpose for which there is an implied promise to pay just compensation as required by the Fifth Amedment (citing cases).

As stated above, plaintiffs have not been able to establish that the land would not have been flooded had there been no dikes, or that the floods which caused the damage complained of were the direct and necessary result of the dikes. It is clear, at least to the extent that the floods would have destroyed the land and crops of plaintiffs in the absence of the dikes, that there has been no taking of plaintiffs property. Any liability on the part of the United States for a taking under the Fifth Amendment to the Constitution must be established by a proper showing that the action of the United States was the cause of the loss. Yazel v. United States, 118 C. Cls. 59.

Plaintiffs next contend that the dikes directly caused an increase in the velocity of flood waters over plaintiffs’ farm, which resulted in an increase in the damage to the farm during flood stages, through additional erosion and sanding. This, plaintiffs say, constitutes a taking within the meaning of the constitutional provision. Defendant contends that the dikes resulted in an increase in velocity only when the water surface elevation of the river was below the top of the dikes, and not at flood stages. Defendant further contends that the evidence does not disclose what portion of the damage, if any, to plaintiffs’ land was caused by the increase in velocity, and finally urges that damages of the nature here involved, if proven, do not constitute a taking under the Fifth. Amendment.

We have found that as a result of the installation of the dikes on the right bank of the river, the velocity of the river in the vicinity of plaintiffs’ farm was increased by approximately 10 percent. It might be reasonable to assume that this increase in velocity caused more erosion and sanding of plaintiffs’ land than would have occurred had the dikes not been constructed, but if true, the extent to which the damage caused by the floods was increased by the dikes cannot be determined from the evidence.

Although we are not convinced that damages of the nature sought by plaintiffs constitute a taking if proven, we need not here decide that issue, for plaintiffs have not been able to establish that the increase in the velocity of the river caused any measurable damage to or destruction of their land which would not otherwise have occurred. Any finding as to what portion of the damage suffered from erosion and sanding was attributable solely to the presence of the dikes in the river would, on the evidence before us, be highly speculative and conjectural. We cannot engage in such speculation, as there must be some foundation for the judgment rendered. Addison Miller, Inc. v. United States, 108 C. Cls. 513, 557.

We accordingly hold that under the evidence in this case, plaintiffs are not entitled to recover. See Yazel v. United States, supra.

The conclusion we have reached makes it unnecessary to consider the remaining issues raised by the parties. Plaintiffs’ petition will be dismissed.

It is so ordered.

Madden, Judge; Whitaker, Judge; Littleton, Judge; and Jones, Chief Judge, concur.

FINDINGS OF FACT

The court makes findings of fact, based upon the evidence, the report of Commissioner Wilson Cowen, and the briefs and argument of counsel, as follows:

1. Plaintiffs, husband and wife, brought this action to recover just compensation for the taking of 225.86 acres of farm land adjoining the north bank of the Missouri Eiver in St. Charles County, Missouri, and for the taking of crops in the years 1945 and 1947. Plaintiffs allege that the taking resulted from acts of the defendant in driving pilings, dredging channels, laying ripraps, and employing other mechanical and artificial devices, which substantially changed the flow, current, channel, banks, and course of the river.

2. The land involved in this action is located about one mile (west) upstream from Matson, Missouri, and has about 2,400 feet of river frontage on the north or left bank of the Missouri Eiver between Mile 54 and Mile 55, which designations indicate the mileage upstream from the mouth of the Missouri Eiver where it flows into the Mississippi Eiver. The acreage of plaintiffs’ farm was acquired through three purchases. On November 8, 1942, plaintiffs acquired the equitable title to a tract of 120 acres from the father of plaintiff, Gordon E. Coates, for a consideration of $7,500. The title to the tract was taken in the name of the father and mother of plaintiff, Thelma B. Coates, and on May 23,1945, legal title to the 120 acres was conveyed to plaintiffs. On January 22, 1943, plaintiffs acquired the equitable title to a tract containing about 39 acres for a consideration of $3,600 and the legal title to this acreage was conveyed to them on August 31, 1944. The third tract containing 66 acres, of which 26 acres was bottom land, was purchased by plaintiffs on June 12,1945, for a consideration of $5,650.- At the time the first two tracts were purchased, plaintiffs had the legal titles thereto placed in the names of other parties in order to facilitate the subsequent acquisition of adjoining tracts at the best obtainable prices.

The southernmost 89 acres of plaintiffs’ farm, the part that adjoins the river, is bottom land and the remainder is hill land. The bottom land is located in what is locally known as Darst Bottoms, the upper end of which is approximately one and one-half miles from the upstream boundary of plaintiffs’ land. The upper end of the Darst Bottoms marks the point where the right-of-way of the M. K. & T. Ey. Co. touches the left bank of the Missouri Eiver, and the bottom land on plaintiffs’ farm lies between the railroad right-of-way and the left or north bank of the river.

3. The Missouri River is a navigable stream.

4. Darst Bottoms lies in the flood plain of the Missouri River. In the course of geological history, the bed of the river has shifted, at one time or another, across the entire width of the flood plain. Since 1890, however, the main current of the Missouri River has been directed against the left or north bank, both above and below Mile 55. As a result of the cutting action of the current, an extensive portion of what was formerly the left bank of the river has been destroyed. In 1924, the left bank of the river in the vicinity of Mile 55 was more than 7,200 feet north of the line which marked the location of the left bank in 1890.

The main current of the river is still directed against the left bank, but since 1982 erosion of the bank has been prevented as a result of the construction of a revetment. Prior to any work in the river at or near Mile 55 by the Government, local interests attempted to stabilize the left bank above plaintiffs’ property. The first shore stabilization work was started by the M. K. & T. Ry. Co., which, in 1926, constructed a revetment at the upper end of the Darst Bottoms, one and one-half miles above plaintiffs’ property. The purpose of the revetment was to prevent erosion of the railroad company’s right-of-way at the point where it touches the left bank of the river. Thereafter, the railroad company and a local drainage district extended the revetment downstream and, between 1928 and 1932, the Corps of Engineers, acting under authority granted by Congress, continued the construction of the revetment downstream to a point where it protected all of the left bank upon which plaintiffs’ property fronts. In the construction and maintenance of the revetment, the Corps of Engineers expended more than half a million dollars. There have been one or two minor failures but, as stated above, the revetment has substantially prevented erosion of the left bank since 1932.

5. The Missouri River is an alluvial stream and the soil in the Darst Bottoms, including plaintiffs’ bottom land, consists of layers of sand, clay, and silt, which have been deposited by the river over a long period of time. Prior to the 1947 floods, most of plaintiffs’ bottom land was of a rich and fertile quality.

6. The elevation of plaintiffs’ land at the river bank is 468 feet above mean sea level. The ordinary high-water mark on the left bank of the Missouri River at and in the vicinity of plaintiffs’ land is at an elevation of 465 feet above mean sea level.

7. The defendant has not constructed any levees along the Missouri River between Jefferson City and the mouth of the river. Prior to 1942, private interests had constructed levees on both sides of the Missouri River in the vicinity of plaintiffs’ farm, including a levee on plaintiffs’ farm having an elevation of 470 feet above mean sea level. The levee in front of plaintiffs’ farm has been overtopped by every major flood since its construction.

In the 1941 Flood Control Act, Congress authorized the Corps of Engineers to repair damaged levees in the Darst Bottoms and, between 1943 and 1948, the Government expended $31,000 in the repair of such levees.

8. In House Document No. 238, 73d Congress, 2d Session, which is a report on the Missouri River and its tributaries that was submitted on October 3, 1933, by the Secretary of War, it was stated that there are 615,000 acres of agricultural land between St. Joseph and the mouth of the river that are subject to damaging overflow. The greatest flood of record in the vicinity of the Darst Bottoms occurred in 1844, and the next major flood was in 1903. Thereafter, there were a number of small floods but no serious flood until 1927. Plaintiffs’ bottom land was flooded to some extent in 1927, 1928,1929, and 1939, and was completely submerged by the floods which occurred in 1935, 1941, 1942, 1943, 1944, 1945, and 1947.

The period from 1941 through 1947 was one of severe flood damage along the Missouri River, and the most severe floods from the standpoint of height and duration were those which occurred in 1945 and in 1947. In April of 1945, a flood reached an elevation of 472 feet in the vicinity of plaintiffs’ property, and in June of that year a flood reached an elevation of 470 feet in the same location.

The April 1947 flood attained an elevation of 470 feet at the location of plaintiffs’ property, and the second flood in June of the same year reached an elevation of 475.2 feet.

9. Pursuant to authority granted by Congress in the Act of July 25,1912, and subsequent acts, the Corps of Engineers carried out a project for improving the navigability of the Missouri River from Kansas City to the mouth. In the beginning, the project called for a minimum low water depth of 6 feet and a minimum width of 200 feet, but by the Act of March 2,1945, a navigation channel having a minimum low water depth of 9 feet was authorized.

The means used for improving the navigability of the channel consisted of revetment to fix the banks and a system of permeable dikes to contract, shape, and stabilize the navigation channel. As a part of this program, 1,350 permeable dikes were installed in the Missouri River between Kansas City and the mouth. A number of such dikes were placed in the river above, below, and across the river from plaintiffs’ land. Construction of the dikes in the vicinity of plaintiffs’ land was completed between the years 1930 and 1936. The permeable dikes consisted of timbers about 40 feet long which were driven into the bed of the river, usually in clumps of two or three. The clumps were tied together with cables, and stringers were used between the clumps.' All of the dikes involved in this action were installed on the opposite side of the river from plaintiffs’ land and extended out into the river nearly at right angles. They varied in length from about 300 feet to a maximum of 2,259 feet.

After the dikes are constructed, sand bars form downstream from each dike. This is accomplished when driftwood collects on the upstream side and induces the deposition of sand behind the dike. Most of the dikes are driven through willow mats to prevent the bed from scouring until the sand bar is formed. After the bar is formed, willows take root and become higher and thicker with the passage of time. Eventually the dike becomes buried and creates a solid barrier which constitutes a new bank. The length of time required for the formation of a sand bar below a. dike varies from a few months to 10 years, and the length of time needed for the dikes to become fully effective is from 10 to 15 years.

10. The ultimate purpose of the series of dikes and revetments is to provide a channel that will be uniform in size and slope, free from sharp bends, and located on a curvature designed to fit the average quantity of water the channel is expected to carry. When the water is below the top of the dikes or below the sand bars formed by the dikes, the dikes force the water to occupy a narrower and deeper channel but one with a capacity equal to the untrained channel during low water. The dikes provide a more uniform section in the river and a constant depth for navigation purposes during low water in lieu of a long, flat section of the river containing splits and sand bars. Studies made by the Corps of Engineers for the purpose of comparing the channel in 1920, prior to the installation of the dikes, with the same channel in 1949 after the dikes and revetment had been placed, indicate that the channel was narrower and deeper after the works had been placed, but in a few instances where the channel was excessively deep, it had filled in.

11. All of the dikes in the river opposite plaintiffs’ property were built below the ordinary high water mark of the Missouri River at the point of installation. The elevation of the highest point on any of the dikes was 462.3 feet above mean sea level, whereas the ordinary high water mark is 465 feet above mean sea level. The highest point on any of the dikes constructed by the defendant was 5.7 feet below the elevation of plaintiffs’ bottom land and 7.7 feet below the elevation of the top of the levee protecting plaintiffs’ land.

At times, when the river stage is below the elevation of the sand bars formed by the dikes, the dikes are effective in reducing the width of the water surface opposite plaintiffs’ land from 2,500 feet, which was the width of the water surface prior to the construction of the dikes, to approximately 1,300 feet. However, in 1928, which was also prior to the time any dikes were installed opposite plaintiffs’ land, the width of the water surface was only 1,000 feet.

12. Sand has been deposited on the land in the Darst Bottoms by the action of floods over a long period of time, but the floods of 1943 and subsequent years were accompanied by larger deposits of sand and by more extensive erosion of topsoil than was caused by any previous floods within the memory of farmers residing in the Darst Bottoms. The 1943 and 1944 floods left thin layers of sand on plaintiffs’ bottom land, and a somewhat larger quantity of sand was deposited on the land by the 1945 floods. However, the quantity of sand deposited by these floods was not sufficient to cause permanent destruction of any portion of the land or to prohibit subsequent farming operations thereon.

Prior to the first flood of 1945, plaintiffs had planted crops in the bottom land, but the crops were completely washed away by the flood. After the flood receded, plaintiffs planted a second crop which, except for 7 acres of corn on the highest part of the bottom land, was destroyed by the second flood of that year.

13. The two floods of 1947 were the most destructive that have ever occurred in the area within the memory of the present residents of the Darst Bottoms. As a result of the 1947 floods, there was extensive erosion of the topsoil on plaintiffs’ bottom land, and all but 30 acres of the approximately 90 acres of bottom land were covered with a deposit of sand ranging in depth from a few inches to about 3 feet. Approximately 36 acres of plaintiffs’ bottom land were covered with such a large deposit of sand that its value for agricultural purposes has been permanently destroyed. The remaining 24 acres can be put back into production only by special treatment and at considerable expense. Most of the bottom land had been prepared for the planting of crops prior to the first flood in 1947, and part of the acreage had been planted. Although the evidence does not show what crops had been planted prior to the flood, all the crops that had been planted at that time were washed away by the flood.

After the 1947 floods, plaintiffs attempted to reclaim the heavily sanded bottom land by the use of a subsurface plow pulled by a caterpillar tractor and, with this equipment, were successful in bringing some of the topsoil to the surface. Plaintiffs then expended more than $1,000 for fertilizer in preparing the bottom land for the growing of oats, Sudan grass, and alfalfa, which were planted in 1948. However, the rains washed away the layer of topsoil into the underlying sand so that the yield of the crops was negligible. The mechanical equipment used in the preparation and planting of the land was badly damaged by operation in the sand. Portions of the bottom land were overgrown with cockleburs and tumbleweeds.

14. A reduction in the width of the river bed by natural or artificial means is accompanied by one or more of the following changes: (1) increased water surface elevations, (2) decreased bed elevation, or (3) increased velocity.

15. The gauging stations on the Missouri River nearest plaintiffs’ farm are those at St. Charles, Missouri, at Mile 28, and at Hermann, Missouri, at Mile 97.

The drainage area of the Missouri River at Kansas City, Mile 380, was 489,162 square miles; at Hermann it was 528,-200 square miles, and at St. Charles it was 529,190 square miles. For practical purposes, the discharge at Hermann is equivalent to the discharge at plaintiffs’ farm, and most of the evidence regarding stages and discharges on the river is based on the Hermann records. Stream gauging is accomplished by collecting and analyzing data for determination of the rate of flow in a stream. Discharge is expressed in cubic feet per second and is obtained by multiplying the cross-sectional area of a stream at a measuring section by the mean velocity of the stream.

The mean velocity of the stream is obtained by taking velocity observations at a relatively large number (70 or 80) of points along the stream.

Height gauges at the gauging stations reflect the relative elevation of the water surface. Zero elevations on the gauges are not uniform in terms of sea level but are usually fixed at a point below the lowest expected water surface elevation. Zero point on the Hermann gauge is 481.40 feet above mean sea level.

The discharge of the river bears a relation to the water surface elevation as shown on a height gauge, in that for a given discharge there will be a corresponding height. This relation is expressed by hydraulic engineers in the form of a graph reflecting the rating curve or the stage-discharge curve at the gauging station,

16. A comparison between tbe 1929 rating curve, as shown by the records published at Hermann and purportedly based on measurements made at that station in 1929, with the 1935 rating curve based on measurements made at Hermann in 1935, shows that a discharge of 400,000 cubic feet per second registered 24.5 feet on the height gauge in 1929, but that the same amount of discharge registered 28 feet in 1935. The same amount of discharge registered 29 feet in 1942, 28.5 feet in 1943, 28 feet in 1944, 27.5 feet in 1945, and 29 feet in 1947.

Plaintiffs claim that the increase of approximately 4 feet in the stage-discharge relation, as shown by a comparison of the 1929 rating curve with the rating curves, for 1935 and subsequent years, was caused by the dikes installed by the defendant. However, the original field notes of the party, which made the measurements upon which the 1929 rating curve is based, show that the measurements were not taken at Hermann but were made at St. Charles, about 69 miles downstream from Hermann. At the time the velocity measurement was made, the party was unable to reach the bottom of the river with their sounding equipment and did not make soundings until the river had fallen 5% feet. Since it was desired to make the reading applicable at Hermann, the time of the reading was set back by seven hours, the estimated travel time between Hermann and St. Charles. Because there was no gauge reading at Hermann which coincided with the hour as set back, the reading used was arrived at by interpolation. A further adjustment was made to allow for the difference in the drainage areas at Hermann and at St. Charles.

As a result of the construction of railroad abutments at the place in St. Charles where the 1929 measurements were taken, the Missouri River is in a constricted location and for that reason measurements of velocity at St. Charles are generally higher than at Hermann.

The Missouri River is a movable bed stream and stage-discharge readings taken at various gauging stations over a long period of time show that there is a variance of as much as 2 feet in stage height with the same discharge reading from time to time. This variation is caused by changes in the stream bed.

17. Although the evidence is conflicting, it has not been shown by a preponderance of the evidence that the dikes installed by the defendant increased the water surface elevation of the river opposite plaintiffs’ farm to the extent that the bottom land would not have been flooded had there been no dikes, or that the floods which caused the damage complained of were the direct and necessary result of the dikes.

18. As a result of the construction of the dikes on the right bank of the Missouri River, the velocity of the river in the vicinity of plaintiffs’ farm was increased by approximately 10 percent. Although no exact science or formula has been developed for relating the amount of sediment carried by a stream to its velocity, as a general rule an increase in the velocity of a stream is followed by an increase in the capacity of the stream to transport greater concentrations of sediment. It is reasonable to assume that the increase in velocity of the river resulting from the construction of the dikes caused more extensive erosion of the topsoil on plaintiffs’ land and deposited a larger quantity of sand thereon than would have been the case had the dikes not been constructed, but the extent to which the damage caused by the floods was increased because of the dikes cannot be determined from the evidence.

19. One of the results of the installation of the dikes was to divert the current from the right bank and toward the opposite bank. However, since the main current of the river had been directed against the left bank since 1890, the extent to which the dikes accentuated this action of the current or increased the damage sustained by plaintiffs cannot be determined from the evidence.

20. Plaintiffs assembled the three tracts constituting their farm for the purpose of operating it as a stock farm, in which the bottom land was to be used for the production of corn and other feed grains and the upland was to provide pasture for livestock. In certain sections of Missouri, there are farmers who are skillful feeders and who successfully operate stock farms with grazing land only and buy all the corn needed for fattening their livestock. However, in the Darst Bottoms it is generally recognized that a stock farm cannot be operated successfully unless the farmer is able to raise his feed as a part of the operation.

After the first tract was purchased, plaintiffs made various improvements to the farm, including additions and repairs to existing improvements. In 1946, plaintiffs erected a residence valued at $18,000 on the farm. In addition to the principal residence, there was a bottom dwelling, two bams, three silos, two implement sheds, a corn crib, a chicken house, a milk house, a brooder house, and a garage.

21. On account of the loss of crops due to the 1945 flood, plaintiffs are claiming the sum of $11,593.23. This claim is based upon an estimated yield of 8,987 bushels of corn (100 bushels per acre) from the 89.87 acres of bottom land. Since it was plaintiffs’ purpose to use the corn produced on the land in the Fall of 1945 for feeding livestock in 1946, the value of the corn has been computed at $1.41 per bushel, the market price of corn in 1946, making a total of $12,671.67. The cost of harvesting the estimated production of com in 1945 would have amounted to $1,078.44. A subtraction of this amount from the total value of the corn leaves a remainder of $11,593.23, the amount of the claim.

For the value of the crops destroyed by the 1947 floods, plaintiffs claim the sum of $16,895.56. This claim was arrived at in exactly the same manner as the claim for the 1945 crop loss, except that the value of the corn was computed at $2.00 per bushel, which was the market price of com in Missouri in 1948.

22. Prior to 1947, most of the high bottom land on plaintiffs’ farm was capable of producing a yield of 90 to 100 bushels of corn per acre in the absence of damage by floods or losses due to other causes, but the evidence does not establish what the average production of corn was on plaintiffs’ land or similar land in the years prior to or after the period of destructive floods which began in 1941. During the 10-year period from 1937 through 1946, the average production of corn in the Sixth District of Missouri, which includes the Darst Bottoms, was 36.1 bushels per acre. The acreage from which the average yield was obtained includes all the hill land on which yields of corn are low, and the evidence shows that the bottom land represents only a small proportion of the total acreage.

23. The evidence regarding crops planted on plaintiffs’ farm in 1945 and 1947 is vague and indefinite and does not show what crops were actually growing on plaintiffs’ farm at the time of the flood damage, or the acreage and value of the crops that were washed away by the floods.

Prior to the flood of April 1945, plaintiffs’ bottom land was planted in crops of some kind, but the record does not show the kind, acreage, or condition of such crops at the time they were destroyed by the flood. After the flood, plaintiffs replanted the land with crops, including some corn, but the evidence does not show the extent of the replanting nor the acreage of corn included in such planting. The June 1945 flood washed away all of such replanted crops except for 7 acres of silage corn harvested in 1945.

Prior to the flood of April 1947, which was the first of the two destructive floods during that year, plaintiffs had prepared most of the bottom land for planting and some of the land had been planted in crops before the flood occurred. There is no evidence, however, as to the kind, acreage, or condition of the crops destroyed by the 1947 flood.

conclusion of law

Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes that as a matter of law, the plaintiffs are not entitled to recover, and the petition is therefore dismissed.

Judgment will be rendered against the plaintiffs for the cost of printing the record herein, the amount thereof to be entered by the clerk and collected by him according to law.

1 The plaintiffs do not agree that the Missouri River Is navigable within the meaning of law. The question of whether or not a stream is navigable is a fact which must be proved, Iowa-Wisconsin Bridge Co. v. United States, 114 C. Cls. 464, and the proof may consist of evidence that the watercourse in question is either used or susceptible of use in its ordinary condition as a highway for commerce over which trade and travel are or may be conducted in the customary modes of trade and travel on water. The Daniel Ball, 10 Wall. 557, 563. We have found as a fact that the Missouri River is navigable.

2 The project originally called for a minimum low water depth of six feet and a minimum width of 200 feet, but by the Act of March 2,1945, 59 Stat. 10, a navigation channel having a minimum low water depth of nine feet and a minimum width of 300 feet was authorized.

3 The violent nature of the Missouri River, and its annual April and June rises ,are well known. See Nebraska v. Iowa, 143 U. S. 359, 368-9; see also Kansas v. Colorado, 206 U. S. 46, where the Supreme Court said, at p. 116: