United States, (1945)

United States Court of Federal ClaimsJun 4, 1945
60 F. Supp. 885 (Fed. Cl. 1945)

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Nos. 44729-44731.

October 2, 1944. Writ of Certiorari Denied June 4, 1945. See 65 S.Ct. 1409.

W.H. Poe, of Orlando, Fla., for plaintiffs.

John B. Miller, of Washington, D.C. and Francis M. Shea, Asst. Atty. Gen., for defendant.

Before WHALEY, Chief Justice, and MADDEN, LITTLETON, and WHITAKER, Judges.

Separate suits by Robert Y. Creech, by C.A. Thomas and another, as administrators of the estate of Charles E. Thomas, deceased, and by Shore Acres Plantation, Inc., against the United States to recover compensation for alleged destruction or damage to plaintiffs' growing crops by waters of Lake Okeechobee, in Florida, allegedly resulting from defendant's construction of a levee.

Petitions dismissed.

Plaintiffs seek to recover compensation for destruction of or damage to their growing crops in 1937 by the waters of Lake Okeechobee, in Florida, which they allege resulted from the construction by defendant of a levee about 31 feet above mean sea level around the southern portion of the lake from the St. Lucie Canal, about midway of the lake on the east shore, to the Caloosahatchee Canal, about midway of the lake on the west shore.

The levee and appurtenant drainage locks and canals were completed and in operation late in 1936 before plaintiffs planted their crops in the winter months of 1937.

Plaintiffs claim, first, that they are entitled to recover just compensation, including interest, as for a taking of their property, i. e., crops, for a public purpose, under the Fifth Amendment; they claim, secondly, that if they are not thus entitled to recover, they are entitled under a Special Act of Congress to have judgment for the amount of loss or damage suffered by reason of injury to or loss of their crops as a result of the lands being overflowed by the waters of Lake Okeechobee in December 1937.

Special Findings of Fact

1. These cases, which have been consolidated for trial, were commenced June 20, 1939, under and pursuant to an Act of Congress approved June 25, 1938, entitled "An Act conferring jurisdiction upon the Court of Claims to hear and determine the claims of Edward Forbes and others," ( 52 Stat. 1399), which Act, insofar as it relates to these petitions, is as follows: "Be it enacted by the Senate and House of Representatives of the United States of America in Congress Assembled, That jurisdiction is hereby conferred upon the Court of Claims of the United States to hear, determine, and render judgment upon the claims of * * *; C.E. Thomas; * * *; R.Y. Creech; * * *; Roscoe Lee Braddock; * * * or other persons engaged in farming on Kreamer, Torry, or Ritta Islands, in Lake Okeechobee, for damage to or loss of crops alleged to have resulted from the construction of levees along the Caloosahatchee River and Lake Okeechobee drainage areas in Palm Beach County, Florida, by the Corps of Engineers, War Department, and from high waters caused thereby: Provided, That suits hereunder shall be instituted within one year from the enactment of this Act."

2. Robert Y. Creech, Charles E. Thomas, and Shore Acres Plantation, Inc., owned or leased, and farmed the lands, located on islands in Lake Okeechobee (hereinafter described in finding 10), during the winter season of 1937-1938 and prior to June 25, 1938.

3. Lake Okeechobee is a large fresh water lake, lying within, or bordering on, Palm Beach, Hendry, Highlands, Okeechobee, and Martin Counties, Florida. Its longest dimension, north to south, is about 36 miles and the width, east to west, is about 31 miles, and its water surface is about 730 square miles. The drainage area, principally to the north, as far as Orlando, is about 5,300 square miles, and the main tributary is Kissimmee River, which has its beginning at Lake Kissimmee about 85 miles north of Lake Okeechobee. The lowest point in Lake Okeechobee is about mean sea level. The Caloosahatchee River rises near the southwestern corner of the lake and flows southwesterly into the Gulf of Mexico. Formerly the lake, in times of high water, discharged over the entire low rim along its south border, southerly into and over a large body of swamp land, about 4,500 square miles, known as the Everglades. This was the principal outlet for the lake, though probably a considerable amount of flood waters found its way into the Caloosahatchee River, by way of Lake Hicpochee, to the west.

4. Since 1902 efforts have been made to drain portions of the Everglades, and numerous drainage districts were formed from time to time, after the passage of the Act in 1907, finally culminating in the Everglades Drainage District, all of which were created and existing under laws of the State of Florida. The first surveys were made prior to 1850 and some ditch work was actually done by the State of Florida prior to 1889, but this pioneering did not materially alter the flood and overflow conditions in the area. A number of large canals were dug by these districts, notably, the St. Lucie, to the northeast, connecting with the St. Lucie River, and thence to the Atlantic Ocean; the West Palm Beach, Hillsboro, North New River, and Miami canals, all emptying into the Atlantic Ocean between Miami and Palm Beach; and the Caloosahatchee Canal emptying into the Caloosahatchee River, thence to the Gulf. Also a State levee was built around the south rim of the take, as described in the next finding.

5. Several years prior to 1930 the Everglades Drainage District, created under state law, had constructed an earth levee along the east and south shores of the lake varying in height from about 22 to 24 feet elevation, but being built on ground having elevations between 16 and 19 feet, was only 3 to 4 feet above ground elevation with occasional places higher. The dike was pervious, contained gaps 30 to 40 feet in width and between Ritta Island and Little Bare Beach, to the northwest, there was a distance of about one mile where there was no dike. The elevation of the land at that point, however, was higher than the area over which the levee had been constructed. Flood gates were placed in the canals where they intersected this State levee.

This levee extended from Bascom Point, on the cast shore of Lake Okeechobee, about three miles northeast of the north tip of Kreamer Island (which lies north of Torry and Ritta Islands involved in these proceedings) around the southern portion of the lake to a point on the southwest shore of the lake about eleven miles northwest of Ritta Island.

About 1926, after the above-mentioned state levee had been built, a road was constructed along the south shore of the lake substantially along the line of and behind or landward of the old levee. This road was made largely of the spoil thrown up in the construction of the dike, leveled off and later graded, surfaced, and made permanent. It ranged in elevation from 21 to 24 feet. This road extended beyond both ends of the levee for a number of miles northeast and northwest.

The locations of the old State levee and the road are shown on a drawing in evidence as defendant's exhibit H, the levee being a red-pencil line superimposed on a light black line, while the road is indicated by fine black double lines.

6. This area of Florida is subject to hurricanes which, before the Government levees were constructed, blew much lake water out over surrounding territory, resulting in a large number of deaths of people living in the area and severe damage to property. The worst hurricanes in this area in recent years were those of 1926, 1928, and 1933. The hurricane of 1933, with a maximum wind velocity of about 80 miles per hour, caused a hurricane tide of approximately 5.6 feet. The hurricane of 1926, with a maximum wind velocity of about 90 miles per hour, caused a hurricane tide of 6.8 feet, and the hurricane of 1928, with a maximum wind velocity of 135 to 150 miles per hour, caused a hurricane tide of 13.2 feet. This latter hurricane which caused the death of about 2,400 persons and great property damage was the primary cause of the Federal Government undertaking the project described herein.

7. By the Rivers and Harbors Act of July 3, 1930, 46 Stat. 918, 925 (Senate Document No. 115, 71st Congress, 2nd Session), Congress authorized the Caloosa-hatchee River and Lake Okeechobee Drainage Areas, Florida, project, whereby the United States Engineers undertook the work of improving the Caloosahatchee River and Canal from Lake Okeechobee to the Gulf of Mexico, by straightening and dredging a channel designed to discharge 2,500 cubic feet of water per second from the lake; constructing a levee and a navigation channel 6 feet deep and 80 feet wide at lake elevation 14, following in general the south shore of the lake; protecting and improving the St. Lucie Canal and River; constructing levees along the north shore of the lake, and constructing all necessary controls such as gates, locks, and other pertinent works. This Act of July 3, 1930, provided as follows:

"That the following works of improvement are hereby adopted and authorized, to be prosecuted under the direction of the Secretary of War and supervision of the Chief of Engineers, in accordance with the plans recommended in the reports hereinafter designated. * * *

"Caloosahatchee River and Lake Okee-chobee drainage areas, Florida, in accordance with the report submitted in Senate Document Numbered 115, Seventy-first Congress, second session, and subject to the conditions set forth in said document, except that the levees proposed along Lake Okeechobee shall be constructed to an elevation of thirty-one feet instead of thirty-four feet above sea level and shall be so built as to be capable of being raised an additional three feet, and that the United States shall perform the work of constructing all levees: Provided, That the State of Florida or other local interests shall contribute $2,000,000 toward the cost of the above improvements, in lieu of the contributions called for in the aforesaid document: And provided further, That no expense shall be incurred by the United States for the acquirement of any lands necessary for the purpose of this improvement."

Work was started on this project by the Corps of Engineers in November 1930, and was finally completed late in 1936, including the various locks, flood gates, spillways, and hurricane gates which were provided as integral parts of the project.

8. These works, among other things, were designed so far as practicable to control the lake within a range of 3 feet, that is, between elevations 14 and 17. The discharge capacity of the St. Lucie Canal is 5,000 second-feet at lake elevation 17, and of the Caloosahatchee Canal 2,500 second-feet at elevation 17, or a total discharge capacity for both at that elevation of 7,500 second-feet. Prior to the Government improvements under the act of July 3, 1930, the discharge capacity of the St. Lucie and Caloosahatchee canals did not exceed 5,500 cubic feet a second at lake elevation of 17 feet above sea level. It was and is impossible at all times to draw water out of the lake as fast as it flows into it. Past records indicate that the lake has risen 2 feet or more within a period of 10 days, and also that if the lake be prevented from falling below 14 feet it cannot always be prevented from rising above 17, or even 18 feet, although the full discharge capacity is used. The defendant's engineers estimate that by doubling the capacity of St. Lucie Canal at a cost of approximately 2 or 3 million dollars, the lake could be further regulated within two or three tenths of a foot in some instances.

9. In connection with this project public hearings were held in 1927 to obtain expressions from interested parties in the Lake Okeechobee district on the lake levels desired. Some interests wanted control between 14 and 17 feet, others 14 to 16, still others 15 to 18, and some 13 to 15 feet. The range of control determined upon by defendant was between 14 and 17 feet because, roughly, a 3-foot range was the minimum practicable range, and because these heights harmonized as much as possible the needs of flood control, navigation, and the complex and divergent interests of all concerned in the area. The farmers and others interested, including plaintiffs, became informed at that time and at all times thereafter of the intention and desire of the Government to control, so far as practicable, the minimum and maximum elevation of 14 to 17 feet. The adopted lower elevation of 14 assures an adequate depth for navigation; provides, as a rule, sufficient moisture for crops through natural flow and irrigation, and affords some protection to the soil itself from destruction by fire and from loss through subsidence. The upper elevation of 17 feet encourages successful cultivation by affording an ample, but a controllable amount of moisture for the crops; by protecting the land from fire and reducing its subsidence to a minimum; and provides a levee freeboard sufficient to protect the surrounding lands from all anticipated hurricane tides and winds. The 17-foot elevation is and was sought to be maintained, the defendant endeavoring to keep the lake stage to that height, except during the rainy season, particularly the hurricane period, for the convenience of pumping and irrigation, and because it was believed to be desirable to have a reserve against the ordinary dry season, as well as to provide against possible extremely dry periods.

10. Ritta, Torry, and Kreamer Islands are located in the lake near its southeast corner, Ritta Island being approximately one square mile in area, and Torry and Kreamer Islands separated from each other only by a narrow channel running in an easterly and westerly direction, Kreamer Island lying to the north of Torry Island, together being about 5 to 6 square miles in area. Ritta Island is separated from Torry and Kreamer Islands by a body of water about 5 miles wide known as South Bay, and Torry and Kreamer Islands, for most of their distances, are separated from the east shore of the lake by a body of water about 2 miles in width at its widest point called Pelican Bay. The southeast tip of. Torry Island is separated from the east shore only by the navigation channel, dredged by the Government during the period 1931-1936, about 200 feet in width which also connects the waters of South Bay and Pelican Bay. The location of the islands in the lake is shown on the map in evidence as defendant's exhibit H.

11. The muck soil surrounding the lake, and on the islands in the lake, extends to depths of 10 to 11 feet. To a great extent it is made up of humus from untold ages of the growth and death of aquatic vegetation. Prior to cultivation of the land the muck was mostly covered by water and the dead vegetation decayed but little. Draining the water from the soil caused aerobic bacterial action to take place, the bacteria consuming the soil, thus causing a very gradual subsidence of the land. These islands have elevations varying from 16 to approximately 18.03 feet. However, only a relatively small area was at the lower elevation, the far greater portion of the area being between 17 and 18 feet, with a very small area reaching an elevation of 18 feet. Owing to the surrounding waters of the lake and the greater saturation of the soil there is materially less subsidence on the islands than on the mainland, and a minor percentage of the subsidence is due, also, to compaction from first cultivation.

12. During the winter months of each year northerly winds of velocities ranging up to 30 and occasionally to 50 miles an hour blowing across the lake, lasting for a period of 10 to 12 hours, are not unusual, and result in wind tides along the south shore ranging in heights up to approximately one foot with wind at 30 miles an hour, and up to approximately two feet at 50 miles an hour, above calm water level, depending upon the velocity of the wind, depth of water and the distance that the wind travels over the surface.

These tides are caused by the friction of the wind on the surface of the water, setting up a surface current and driving the water from the upwind to the downwind shore, the water assuming a gently sloping plane from one shore to the other and being lowered below the calm level water surface at the upwind shore to substantially the same extent as it is raised above such surface at the downwind shore. Wind tides, of course, are always accompanied by wave action, which somewhat increases the height of the water above the wind tide elevation, especially close to the shore or barrier.

Occasionally the wind tides were high enough to cause the water to overflow the southern border of the lake and spread out to the old dike and in breached places, through it to the highway adjacent thereto, but not beyond the highway onto the Everglades except during hurricane tides. This tended to dissipate the wind tides to a slight degree, but not of sufficient degree to materially affect their height at Ritta or Torry Islands.

The height of the wind tides varies along the border of the lake. It is greater at the extreme south shore of the lake in South Bay on account of the longer fetch of the wind from the north than it is between Torry Island and the southeast shore in Pelican Bay, which has a shorter fetch. This causes the greater volume of water on South Bay to flow northward through the 200-foot channel between Torry Island and the levee with a current of about 3 miles per hour and affects the height of wind tides on the eastern side of Torry Island.

13. A general study of the characteristics of the lake over a period of many years prior to 1937 indicates that except for temporary rises from local rains the lake ordinarily commences to rise from general low elevation about June 1, and continues until sometime during the months of October and November, and sometimes during December, and at times January, when it begins to fall, the waters frequently attaining elevations higher than 17 feet in November, December, January, and February, with elevations of 18 to 19 feet and above not having been uncommon during these months. When the lake begins to fall the recession is generally continuous and rapid until summer.

The winter growing season may extend from October to March or April, and the practice followed by plaintiffs and others was to begin planting as soon as it was believed that the water had reached its peak and had fallen sufficiently to permit successful operations on the higher ground, extending the planting to lower ground as the water further receded. At times owing to high water elevation, only the higher elevations of the land were sufficiently dry to plant. Planting may commence from October, depending upon the elevation of the lake.

14. From 1912 to 1931, both inclusive, covering a period of 20 years prior to the commencement of the Government works, the average monthly calm water lake levels exceeded 17 feet in one or more of the months November, December, January, and February during 14 separate years, which years and which average monthly recorded levels in said months were as follows:

----------------------------------------------- 1912 1913 1914 ----------------------------------------------- Month Lake Month Lake Month Lake Level Level Level ----------------------------------------------- Nov ... 21.7 Jan ... 20.4 Jan ... 19.4 Dec ... 21.3 Feb ... 20.7 Feb ... 19.4 ----------------------------------------------- 1915 1916 1922 ----------------------------------------------- Month Lake Month Lake Month Lake Level Level Level ----------------------------------------------- Nov ... 18.3 Jan ... 18.1 Nov ... 18.7 Dec ... 18.3 Feb ... 17.9 Dec ... 18.8 Dec ... 17.1 ------------------------------------------------ 1923 1924 1925 ------------------------------------------------ Month Lake Month Lake Month Lake Level Level Level ------------------------------------------------ Jan ... 18.6 Jan ... 19.2 Jan ... 19.1 Feb ... 18.3 Feb ... 18.2 Feb ... 19.0 Nov ... 18.6 Nov ... 19.2 Nov ... 18.0 Dec ... 18.2 Dec ... 19.2 Dec ... 17.7 ----------------------------------------------- 1926 1927 1928 ----------------------------------------------- Month Lake Month Lake Month Lake Level Level Level ----------------------------------------------- Jan ... 17.7 Jan ... 18.3 Nov ... 18.2 Feb ... 18.0 Feb ... 17.4 Dec ... 17.6 Nov ... 19.0 Dec ... 18.6 ----------------------------------------------- 1930 1931 ----------------------------------------------- Month Lake Month Lake Level Level ----------------------------------------------- Nov ... 18.4 Jan ... 17.2 Dec ... 17.6 -----------------------------------------------

In 1929 the average daily calm water level of the lake exceeded 17 feet on the 2d 3rd, 4th, 5th, and 6th days of January, the maximum being 17.15, but the average monthly lake levels were below 17 feet.

During the same period, the average monthly calm water lake levels were 17 feet or less in each of the months of January, February, November, and December during the following years only: 1917, 1918, 1919, 1920, 1921.

Normal seasonal wind tides would further increase these lake levels.

15. No attempt whatever was made to regulate the lake waters during the period November 1, 1930, to November 1, 1931, during which period all gates were open and continued full discharge as a convenience during the Government construction period and in the installation of structures. During this period the maximum calm water lake levels were 13.8 in November and 12.9 in December 1930, and 12.8 in January 1931. Little, if any, effort was made to regulate the lake levels during the period of Government work from 1930 to 1936, inclusive. The facilities constructed by the Everglades Drainage District, a state organization, consisted, as hereinbefore mentioned, of the original St. Lucie Canal, of 5,000 cubic feet per second discharge capacity; the levee along the southern shore of the lake, and the drainage canals and gates through the levee and extending to the south. These canals were intended for draining the lands south of the lake and for irrigation purposes, and also for use in times of hurricanes. These structures appear to have been completed in 1926, and the period of the attempted control or regulation by the state of the lake levels extended over the period from that time to November 1930, but this effort was ineffectual due to the hurricanes of September 17, 1926, and August 8, 1928. The St. Lucie Canal was not in operation at the time of the 1926 hurricane. Except for these conditions the facilities mentioned would have permitted the calm water or quiescent fluctuation of the lake surface to have been held within a range of 3 feet. The War Department permit for construction of the original St. Lucie Canal fixed 15 feet as the minimum lake stage for regulation purposes; the controlled maximum was, therefore, 18 feet. To what extent this regulation was applied or used prior to the hurricane of September 1926 does not appear. This hurricane washed out parts of the levee which were subsequently repaired to substantially its original state before the 1928 hurricane. In the spring of 1927, the year in which plaintiffs first began farming operations on Torry and Ritta Islands, the water level of the lake was down below the 15-foot standard for regulation because of the 1926 hurricane and the damage to the levee which had not then been fully repaired. This low level was permitted for the purpose of providing flood storage capacity during the usual fall rainy season without causing the water surface to rise to a dangerous height. However, contrary to expectations, there was an unusually small amount of rainfall. The lake rose some after August 1927; it gradually fell to an elevation of 13.8 feet in March 1928, and then further fell to 12.7 feet on May 15, 1928. The elevation of the lake was 12.9 feet on June 4 and 5, 1928. Every effort was made to conserve the water in the lake during the spring and summer of 1928 in the interests of navigation, irrigation, and fire protection. Just prior to the hurricane of August 8, 1928, the water of the lake stood at an elevation of 13.7 feet; it then rose rapidly (see finding 6). The St. Lucie Canal was opened to its full capacity at the time of the August 8, 1928, hurricane and was thereafter left wide open until the Government took over the work of improvement in 1930. Certain shoaling of the canal by the hurricane was removed after the hurricane.

16. From 1932 to 1936, covering the five-year period of construction of the levee and auxiliaries, for the months of January, February, November, and December, the monthly average calm water lake levels were below 17 feet, being at one time as low as 12.8 feet in January and February 1932.

17. In connection with this project by the United States Government, defendant's engineers evolved a formula for the regulation or control of the waters of Lake Okeechobee based on rainfall and evaporation, described herein and illustrated on a chart in evidence as plaintiffs' exhibits 5 and 6, and also illustrated on defendant's exhibit I.

Two principal controlling factors in Lake Okeechobee levels are rainfall and evaporation. Daily measurements of these two phenomena, when plotted at weekly intervals on a graph, take the form of a curve designated by the engineers as the "R-E. (Rainfall minus Evaporation) Curve," as illustrated on said graph. The rise or fall of this curve was used by defendant's engineers as the chief factor from which the rise or fall of the lake could be anticipated, and, hence, as an index to the extent to which the outlet gates should be regulated in order to maintain as near as practicable the desired lake levels of 14 to 17 feet, which represent the calm water or quiescent level of the lake.

18. Upon substantial completion of the project in 1936, defendant's engineers undertook to regulate the lake by applying the "R-E" formula, beginning in 1937.

The hurricane season is normally the late summer, and early fall, through September. Defendant's plan, in order to accomplish the object and purpose of the project, was to provide sufficient freeboard between the lake surface and the top of the levee and to hold the lake level to an elevation not exceeding 16 feet through September 1937, and after the threat of hurricanes had passed then to bring the lake level, if possible, to approximately the 17-foot level before the end of the year 1937 and to maintain that level in order to minimize fire hazards, benefit crop production, and to prevent the lake from falling below 14 feet at any subsequent time, as set forth in finding 9.

As actually regulated in 1937, the defendant's engineers opened the flood gates about August 7 to partial capacity, until the last week of September when the gates were closed, the elevation of the lake for the month of September being approximately 15.6. About that time (September 25) the lake began to rise. Since defendant expected a moderate rise at that season, the gates were kept closed until the lake reached approximately elevation 16.5 October 23. The gates were again opened on October 29, and remained open until November 20 when, the R-E curve showing a downward trend, they were closed, the defendant believing there would be no further rise. During this period, October 29 to November 20, the daily discharge was of less than full capacity.

The lake leveled off at that time for a few days, but by November 27, instead of continuing downward as defendant expected at that season, took an upward trend and again began to rise sharply and continued to rise. The gates were opened about December 2, 1937 to full capacity, but the water continued to rise until December 4, 1937, reaching a level of 17.26 as indicated on the graph. Under the conditions existing during the year 1937, the defendant varied the strict application of the R-E formula; but this was not intentionally done. Defendant's efforts were to follow and apply the R-E formula. Under the control as it was actually exercised that year, the lake reached an elevation of 17.26 feet, its highest elevation of the 1937-38 winter season, about December 2-4. A strict application of the R-E formula would have resulted in a quiescent lake elevation of 17.04 on December 4. The gates remained open for December and January. About December 5, 1937, the water began to recede and continued down and remained down for a long period during the following year.

About December 1-4, 1937, the area was visited by a "Northwester," the wind reaching a velocity of slightly less than 30 miles per hour, causing a wind tide along the south shore of the lake and increased the lake elevation at the islands. There was also considerable rainfall north of the lake.

At hurricane gate No. 3, near Lake Harbor and close to Ritta Island, the Government's hourly readings of lake levels (as indicated on defendant's log in evidence as defendant's exhibit J) show that on December 2 at 10 p. m. the water was at level 18.30. At the same time records indicate the quiescent or calm water lake level to have been 17.16.

The difference between the level at gate No. 3 of 18.30 and the actual calm water lake level of 17.16, or 1.14 feet, was due to wind tide resulting from the action of the water with a wind velocity of 29 to 30 miles per hour in this landlocked lake blowing across the lake from the north to the south.

The Creech property is approximately one mile from the south shore and gate No. 3, and the elevation of the water at the Creech property was approximately 18.30 on December 2.

Similarly, the gate reading at gate No. 4, near Torry Island on December 2, 1937, was 18.25, while the lake level was 17.16, or a difference between the lake level and gate reading of 1.09 wind tide feet. This is estimated by defendant's engineers to have caused a lake level at Torry Island of approximately 18.25 on December 2, 1937.

19. Some weeks prior to December 1, 1937, plaintiffs and others interested in the crops on the islands had contacted the defendant's officials in Clewiston and at Jacksonville, and had urged that the flood gates be opened and the water discharged on account of danger to their crops which had been planted and were growing.

20. During the period December 2-4, 1937, with a lake level of approximately 17.26 feet and wind tide of approximately 1.14 feet, resulting from a wind of about 30 miles' velocity, with the lake elevation approximately 18.30 feet at Ritta Island, and approximately 18.25 elevation at Torry Island, the lake waters overflowed the lands of plaintiffs Creech, Thomas, and Shore Acres Plantation on Ritta and Torry Islands and damaged or destroyed the crops then growing thereon.

21. In choosing a site for the proposed levee, four alternative locations were considered, one of which contemplated constructing it out in the lake beyond Ritta, Torry, and Kreamer Islands so as to place them all within the protection of the levee; two of which contemplated placing Kreamer and Torry Islands within the protection of the levee but leaving Ritta Island in its normally exposed position and unprotected; and the other of which followed the south rim of the lake and provided no levee protection for Ritta, Kreamer, and Torry Islands. A drawing illustrating these proposed localities is in evidence as defendant's exhibit BB.

After careful consideration and-study of all the factors involved, the three locations which would have afforded some protection to one or more of the islands were rejected as being too exposed to the waters of the lake and wave action, as well as being too costly to construct and maintain in proportion to the benefits accruing therefrom. The Chief of Engineers recommended to Congress, and authorization and appropriations were made by Congress for, the site which followed in general the south shore of the lake, the final location line to be determined by the Chief of Engineers. As actually constructed, the levee followed a line along the south shore of the lake at a distance of approximately one mile from the south end of Ritta Island and was separated from Torry Island by a navigation channel 200 to 300 feet in width and some 10 to 12 feet in depth, depending upon the lake level. The site chosen for the levee was fair, reasonable, and practicable.

22. The levee as located and constructed by the Government had no appreciable effect on the height of the waters of the lake or on the wind tides at either Ritta or Torry Islands over and above the lake elevations and wind tides at and around the Islands which normally would have been occasioned under the same weather conditions without the levee, or if the levee had been constructed on the site of the existing state levee (see findings Nos. 5, 11, and 12).

23. During the season 1937-38, plaintiff Robert Y. Creech was farming a tract of land on Ritta Island which was planted to two crops, viz., string beans and eggplant, and plaintiff Charles E. Thomas was farming an adjoining tract on Ritta Island on which he had planted string beans, lima beans, tomatoes, eggplant, and peppers. Plaintiff Shore Acres Plantation Company in the same season was farming a tract of land on Torry Island on which a single crop, viz., Irish potatoes, had been planted.

Plaintiffs were informed and experienced farmers.

24. The land elevation on Ritta Island in 1937 varied from 16.5 to 18 feet, with the greater number of acres at elevation 17+. The tract farmed by Shore Acres Plantation Company on Torry Island in 1937 varied from 16.4 to 18.3 feet elevation. The soil on the islands being pervious was saturated with water to an elevation corresponding with that of the water in the lake. If this saturated soil is too close to the surface of the land, crops cannot be successfully grown on it. Crops generally require the water depth to be 1 1/2 to 3 feet below the land surface.

25. In 1930 to 1932 plaintiff Creech had a series of ditches dug across his property and also subsurface drainage called moles, connecting the ditches and allowing the water to go to a common level. He installed two power pumps and erected mud dikes which were pervious from elevation 16.5 to a point on the land where the elevation was approximately 18 feet.

Before 1937 Mr. Creech grew crops with splendid success when the water elevation at Ritta Island was at 16 to 16 1/2 foot level. As the water elevation approached 17 feet, the waters had access to portions of his land and he was, with his then equipment, unable to grow crops with the same degree of success as when the waters were at a lower level. At such times only on the high elevations of his land could crops be grown, and he suffered losses.

In 1937 plaintiff Creech's protective equipment was inadequate to successfully grow crops with the lake elevation of 17 feet plus normal and expected wind tides.

26. The land of plaintiff C.E. Thomas on Ritta Island had no dike construction and there is no evidence that he had any ditches or had installed pumps. At several points where there were elevations of less than 17 feet in 1937, lake waters of that elevation would flow onto the land and to a greater extent with wind tides. At the time of the flood in question in 1937, the water entered the Creech tract from the Thomas tract at about the same time it overtopped Creech's dikes.

Owing to his lack of protective equipment, Mr. Thomas could not grow crops as successfully as Mr. Creech. When the water elevation, including wind tides remained well below 17 feet, crops were successfully grown, but his degree of success lessened as the water level approached elevation 17.

27. The tract of Shore Acres Plantation Company on Torry Island had two small ditches dug at the south and southeast portions of the tract along the border of the navigation or rim canal, and the spoil from these ditches was thrown up alongside to form a dike for the protection of the crops from lake waters. This spoil dike was wholly inadequate for the protection of the farming operations of plaintiff. Portions of the land were protected to some extent by the natural elevations of the land.

Plaintiff was not able to successfully grow full crops on the Torry Island land with lake levels plus wind tide of 17 feet. At the 17-foot level plaintiff could cultivate and grow crops only on the higher portions of the land.

28. Planitiffs commenced farming operations on Ritta and Torry Islands in 1927. During the years prior to 1937, when the recorded mean monthly lake stages or the average daily lake stages during the months of January, February, November, and December had not been above elevation of 17 feet (see finding 14), plaintiffs enjoyed the advantage of low lake elevations for their farming operations, and they were often able to produce full crops successfully, although at times they experienced damage and losses due to high water as well as from cold weather.

29. None of the plaintiffs had adequate equipment in 1937 to protect their crops from loss or damage with a lake level of 17 feet plus normal, expected wind tides. Since 1937 the Creech and Thomas tracts on Ritta Island have been completely enclosed by dikes which afford adequate protection to their lands under normal conditions on the lake.

30. The fall and winter seasons in the vicinity of Lake Okeechobee, that is, the months of October, November, December, January, and February, are particularly adaptable to vegetable farming, and that area supplies to a great extent the winter green vegetable market in the more northerly latitudes, particularly along the eastern seaboard of the United States.

31. In the season of 1937-38 Creech commenced planting in October. In that season some farmers on the islands had not yet planted their crops when the overflow occurred in early December 1937. Plaintiff Creech planted his land on Ritta Island that season to beans and eggplant at intervals between October and the last of November so that the beans which ordinarily mature in 6 to 8 weeks could be marketed at intervals from late December through January and February. The eggplant being a longer crop would have been harvested in March. The last 20 acres of Creech's tract were planted late in November, just prior to the overflow of his land in early December. The tract contained a total of 122.5 acres and was planted with two crops growing at the same time, as is not unusual in the rich everglade soil, as follows: eight rows of beans, three rows of eggplant, and one row of corn, the latter being used as a windbreak to protect the other plants.

Robert Y. Creech — No. 44729

32. Robert Y. Creech had planted and growing on the lands described in the amended petition herein:

35 acres of eggplant of the value of ............ $11,411.40 110 acres of beans of the value of .............. 16,104.00 ---------- 27,515.40 Less approximate amount salvaged ................ 995.00 ---------- Net loss ...................................... $26,520.40

C.A. Thomas and Inman W. Weeks — No. 44730

33. Plaintiffs' decedent, Charles E. Thomas, whose land adjoins that of Creech, had planted about the same time as Mr. Creech, and had growing on the lands described in the amended petition herein:

80 acres of string beans, approximately 15 acres of which were salvaged, leaving 65 acres of the value of ....................... $ 9,516.00 39 acres of lima beans of the value of ........ 7,449.00 7 acres of eggplant of the value of ........... 2,282.28 16 acres of peppers of the value of ........... 1,664.00 18 acres of tomatoes of the value of .......... 2,772.00 ---------- 23,683.28 Less cost of bringing crops to maturity ....... 1,127.75 ---------- Net loss .................................... $22,555.53

Shore Acres Plantation, Inc. — No. 44731

34. The evidence as to the potato crop of Shore Acres Plantation is unsatisfactory. This company had planted on the island about 100 acres of potatoes. A considerable amount was damaged by water, but after the waters had subsided plaintiff cultivated, sprayed, and raised a very substantial crop. Plaintiff also had planted about 60 acres of potatoes on the mainland, which crop was in part killed and the balance damaged by frost. There is no evidence as to the number of bushels harvested from the island or from the mainland, but, with no separation, all were gathered at the same time, taken to Belle Glade, and marketed with the Wedgeworth Packing Company. There were sold 12,984 bushels at a gross price of $8,717.01, or net price to plaintiff of $5,543.87.

In an application for a renewal of its loan, on April 11, 1938, plaintiff represented that it had harvested 175 acres and produced 12,953 bushels of potatoes.

Plaintiff suffered some loss on account of the water covering its crop of potatoes, but the proof is unsatisfactory as to any definite amount.

The claims made by plaintiffs in the petitions filed, for loss and damage to their crops in December 1937, are that during each winter season the area in question is usually and normally visited by one or more periods in which the wind blows over Lake Okeechobee from the North or Northwest at the rate of 20 to 35 miles per hour, or more, causing slight wind tides along the Southern border of the lake varying with the height of the lake and the intensity of the wind; that prior to the construction of the levee by the defendant, and at the high stages of the lake, these wind tides were dissipated after a rise of a few inches by spreading out to the old dike, and through the openings in it, and by enormous leakage through and under it, but that after the construction of said levee by defendant and the closing of the outlet channels on and after the early part of 1937, these tides, at high stages, were abruptly intercepted by the impervious levee located immediately adjacent to the lake, and rose until sufficient head was generated to produce sufficient under and lateral flow back into the body of the lake to create an equilibrium.

Further, they claim that during and prior to the winter crop season of the years 1937 and 1938 plaintiffs had provided adequate protection against a lake elevation of 17 feet, with normal wind tides as they were experienced prior to that time super-added, and had the lake elevation not exceeded 17 feet, and had the wind tides not been proportionately increased by the construction of the levee plaintiffs would not have sustained loss or damages to their crops from high water during said season.

In seeking enactment of the Special Act, quoted in finding 1, plaintiffs stated their claims to Congress in a letter of December 30, 1937, to be that "* * * the levees as established and located have left these islands wholly unprotected. * * * Properly located levees would have furnished adequate protection not only against floods from abnormal lake stages but also floods produced by wind tides at normal stages. But we do not complain of this. What we do complain of is the flood conditions produced by the levees in their present location. * * * Naturally the inquiry arises as to the manner in which these levees have caused this changed condition. * * * Before the advent of the levees wind tides would sweep on past the islands and spend themselves into these bays, pockets and marshes [lakeward of the old levee] without flooding the islands. Now the levees have cut off all of these bays, pockets and other natural outlets for wind tides. The levees stand between the shore line and the is-lands skirting close to the south line of Torry and Ritta Islands. One very large bay (Pelican Bay) is completely cut off."

In a further written statement filed with Congress January 14, 1938, in reply to a statement filed by the Secretary of War, plaintiffs stated with reference to their claims that "In our letter of December 30, in which the gravamen of our complaint is set forth, not one word of criticism will be found with reference to the lake elevation. Neither is there any complaint that the levees have in any manner whatsoever interfered with or prevented the control of the lake levels. * * * Our claims for damages are predicated on the position that by virtue of its location, and other natural conditions surrounding the vicinity in question, the levee causes wind tides to bank up against it, thereby flooding the islands. In short, before the advent of the levees wind tides swept on past the islands and dissipated themselves in bays, pockets, and other natural outlets and flood conditions were not produced. Now these wind tides are impounded close to the islands, producing floods followed by enormous crop damage."

Plaintiffs press the same contentions, as set forth above, in these cases as the basis of their right to recover. In favorably reporting on the enactment of the Special Act the Claims Committees of Congress (House Report 2541, 75th Cong., 3d sess., p. 3, and Senate Report 2097, p. 3) stated, in part, that "The record is clear that wind tides and not the water level of the lake cause this [damage], * * *. Certainly they are entitled to a determination of their claims in a competent court. The facts establish more than a prima facie case but whether the Government, as a matter of law or equity, has caused the losses to claimants and ought to respond in damages therefor, is a question which we do not feel within our province to decide, particularly since we have not been called upon to do so."

From the facts established by the greater weight of the evidence of record, and set forth in the findings, we are of opinion that plaintiffs are not entitled to recover either under the Fifth Amendment or the Special Jurisdictional Act. There was no taking or intention to take plaintiffs' lands or a permanent easement thereon, i. e., the right to flood the lands during the winter months, which is a part of the season for raising crops thereon. The act of July 3, 1940, authorizing the improvements, provided "That no expense shall be incurred by the United States for the acquirement of any lands necessary for the purpose of this improvement." In addition the record shows that it was the purpose and intention of the Government to regulate the waters of Lake Okeechobee as far as possible so as to prevent the water from rising above the maximum calm water elevation of 17 feet at any time, which elevation was considerably lower than the calm water elevation which the water had customarily reached in years prior to the improvement (findings 13 and 14). In 1937, the year in question, the Government used its best efforts to regulate the water level on the basis of the formula prepared from past and existing facts and data; in this it succeeded, and the calm water level did not rise above elevation 17.26 in the winter months of 1937. Plaintiffs suffered loss and damage to their crops in prior years from high water and wind tides. To what extent the record does not show. They claim their crops were not entirely destroyed in prior years.

On the question whether there was a taking under such circumstances as to give rise to an implied contract to pay just compensation under the Fifth Amendment, it must be held on the facts that whatever damage plaintiffs sustained as a result of the Government work was consequential and the result of authorized action of the Government in connection with navigation and flood control, for which no remedy is afforded in the courts under the Fifth Amendment. Gibson v. United States, 166 U.S. 269, 17 S.Ct. 578, 41 L.Ed. 996; Sanguinetti v. United States, 264 U.S. 146, 44 S.Ct. 264, 68 L.Ed. 608; Matthews, Trustee for R. W. Owen et al., v. United States, 87 Ct.Cl. 662, 720, 721; Poinsett Lumber Manufacturing Co. et al. v. United States, 91 Ct.Cl. 264, 266.

Under the Special Act of June 25, 1938 (finding 1), as we interpret it, plaintiffs have not established a right to recover from the Government the damages sustained by them. This act had a purpose, and its history and language indicate that such purpose was to confer jurisdiction and authority upon the court to render judgment for the amount of damage to or loss of crops if it should be established by proof that such damage or loss in fact and in law "resulted from the construction of levees * * * and from high waters caused thereby." In other words, the damages which may be allowed are to be determined according to the usual principles of legal cause and legal liability. The act does not concede liability, and plaintiffs do not so contend.

Plaintiffs, as we understand their position in these cases, do not base any part of their claim on the fact that the maximum calm water lake elevation at the time of the damage was 17 or 17.26 feet; they base their claimed right to recover on the asserted facts that they had provided adequate equipment to protect their crops against damage from wind tides at a water elevation of 17 feet, which they expected; that the flooding which occurred as a result of the 30-mile per hour northwest wind would not have occurred had the Government levee not been constructed, or if it had been constructed on the site of the old levee, and that the location of the Government levee on the lake shoreline near the islands caused this wind tide to be "six or more inches higher than before the levee was built," and that this was the cause of the loss.

These contentions present questions of fact. The entire record has been carefully studied and considered in the light of plaintiffs' exceptions and arguments, and from the oral and documentary evidence we have found that these contentions are not sustained, and that, on the contrary, the greater weight of the evidence establishes the facts that the levee, as located and constructed by the Government, had no appreciable effect on the height of the waters of the lake or on the wind tides at either Ritta or Torry Islands over and above the elevations which normally would have been occasioned under the same weather conditions without the levee (finding 22), and that none of the plaintiffs had adequate equipment in 1937 to protect their crops from loss or damage with a lake elevation of 17 feet, plus normal expected wind tides.

Plaintiffs are therefore not entitled to recover, and the petitions are dismissed. It is so ordered.

WHALEY Chief Justice, and MADDEN and WHITAKER, Judges, concur.

JONES, Judge, took no part in the decision of this case.