LittletoN, Judge,
delivered the opinion of the conrt:
This is a Congressional Reference case referred to the court by H. Res. 709, 82nd Congress, 2nd Session, under which the court was to proceed in accordance with 28 U. S. C. sections 1492 and 2509 and report to the Congress respecting the claims of the plaintiffs against the United States as the result of alleged damage to their farms from the control of the Yakima River for irrigation purposes by the Bureau of Reclamation of the Department of Interior.
The Yakima Project which was begun in 1911 is situated in south central Washington. It is divided into several irrigating divisions and a storage division consisting of six reservoirs, three of which are situated above plaintiffs' lands. Their lands which are located approximately four miles downstream from the city of Cle Elum, Washington, were acquired in the years 1939 and 1944, and have been utilized by them for dairying, farming and pasturage purposes. Findings 2-4. For a description of the lands in relation to the river see findings 5-7.
The function of the reservoirs is to store floodwaters in the fall, spring and winter for release during periods of low flow when irrigation is necessary. While the principal purpose of the reservoirs is to store water for irrigation, they are also used as far as possible for flood control. The operation of the reservoirs (and it is the three that are situated above plaintiffs' lands with which we are concerned), while lessening tlie adverse effects of tbe spring and winter floods on plaintiffs' lands has had the effect of passing more water down the river and channels adjacent to and cutting through their properties during the late spring, summer and early fall.
This, plaintiffs allege, has resulted in the impairment of the usefulness of their lands during the normal farming season with the resultant decrease in the value of their properties. While not questioning the overall purposes and benefits of the irrigation project, plaintiffs do contend that insofar as the project has resulted in a taking or injuring of their lands the Government should compensate them.
Defendant's position is that plaintiffs have neither a legal nor equitable right to recover because the evidence has failed to establish that their lands have been taken or injured as a result of the operation of the irrigation project or that the facts warrant consideration of the claims on an equitable basis.
While defendant has made use of the Yakima Eiver for irrigation purposes for many years, plaintiffs' position is that the present conditions, of which they first complained in 1947, have resulted to a great extent from the addition of the Roza Irrigation Division in 1941. In this division additional land has been put under irrigation each succeeding year with 40,000 acres included by 1945, and 69,000 by 1953.
The Yakima River is a meandering, alluvial stream. Its bed of sand and gravel is unstable and the channel is unstable. The banks are sand and gravel mixed with silt and clay. Major changes in the bed and course of the river occur during periods of very high flow resulting from either winter or spring floods. At those times the bed may be cut down or built up. The water cuts the bank on the outside of bends, and side channels are cut across the bends. That this result would be prevalent on plaintiffs' lands can be seen from the fact that the course of the river through and around those lands forms a typical oxbow. The land of plaintiff Willette is in fact not touched by the main channel of the river but his use of the land is affected by the presence of water in the main overflow channel and side channels which cross his land, as well as that of the other plaintiffs. Present indi cations are that this main overflow channel which cuts across the oxbow will in time be the main channel of the river.
Aggradation of the river bed in the vicinity of plaintiffs' lands which has been taking place for many years, although at varying degrees from year to year, has also influenced the course of the river and the flow of water. Cycles of aggradation and degradation are normal for an alluvial stream like the Yakima. In addition to this normal process, aggradation of the bed near the lands in question has resulted from a slide one mile below those lands in 1947, which blocked the river for a short time with the new channel that was cut being narrower and its bed higher than the former channel. Ag-gradation also resulted from the straightening of a curve in the railroad above Cle Elum which increased the slope of the river, causing the gravel in the bed to move downstream. The 1948 flood, which was the greatest in many years, resulted in a great deal of aggradation.
The cutting of the overflow channels across the lands and the aggradation of the bed of the river have lessened the usefulness of plaintiffs' lands. Certain of the areas do not drain off as they formerly did with the result that acreage that was capable of growing hay is now usable only for pasturage. In addition the presence of more water in the side channels during the summer months has made certain areas less accessible, insofar as their use for pasturage is concerned.
It is plaintiffs' contention that these conditions have been caused or aggravated because of the Bureau's action since 1947 of passing greater volumes of water past their lands during the summer months. Headings at a stream-gaging station maintained by the Government just below Cle Elum do show, that on an average, a greater volume of water has passed plaintiffs' lands during the 1947-52 period of July, August, and September in comparison with the previous six year periods of 1935-40 and 1941-46. Findings 13 and 16.
Despite this it remains impossible when considered in the light of the nature of the Yakima River to find that this increased flow, even if wholly chargeable to the Government, has been an appropriation of plaintiffs' lands to the extent of constituting a taking which is compensable under the Fifth Amendment. Sanguinetti v. United States, 264 U. S. 146, affirming 55 C. Cls. 107; Coates v. United States, 124 C. Cls. 806; Yazel v. United States, 118 C. Cls. 59; Matthews v. United States, 87 C. Cls. 662; Vansant v. United States, 75 C. Cls. 562. Failing this, plaintiffs' remedy, if any, against the Government would be one in tort over which this court has no original jurisdiction.
Then too, the record before us fails to disclose any discernible decline in the value of the plaintiffs' lands since 1947, and plaintiffs' evidence in support of their allegations of loss of income on the properties is insufficient. Finding 26.
Four qualified witnesses, two by each party, were presented on the question of the value of the lands. Plaintiffs' witnesses evaluated the lands by comparing them with other lands in the general area which were not subject to the flooding conditions, i. e., land which could be tilled and farmed minus the water conditions found on plaintiffs' lands. This, of course, assumed a premise which has never existed insofar as the lands in question are concerned. It served to give a would-be value of $23,250 on the Crites land, yet he paid only $5,000 for it in 1944. All witnesses fixed this same figure, $5,000, as the present value of that land. The 1953 value of the lands and improvements thereon are set forth in finding 26.
All the river bottom lands along the Yakima River of which plaintiffs' lands are an example do not have a wide market and their value does not tend to change or fluctuate to any degree. The use of the land and its marketability is limited because of the perennial danger of floods with the resultant cycles of aggradation and degradation and the cutting of side channels because of the winding course of the river. These limitations have existed for many years and there has been no showing that they are now greater than could have been expected at the time plaintiffs acquired the lands.
CONCLUSION
We find no legal or equitable liability. Although the usefulness of plaintiffs' lands has been impaired to some extent because of the action of the river, we are unable on the basis of the record before us to find the Government responsible or to find that there has been a material decrease in the value of the lands in question since 1947. Any payment which the Congress in the exercise of its discretion may grant on the basis of the findings of fact herewith would be in the nature of a gratuity.
This opinion and the findings of fact, together with the conclusions thereon, will be certified to Congress pursuant to House Eesolution 709,82nd Congress, 2nd Session.
Laramore, Judge; Madden, Judge; Whitaker, Judge; and Jones, Chief Judge, concur.
FINDINGS OF FACT
The court, having considered the evidence, the briefs and argument of counsel, and the report of Commissioner George H. Foster, makes the following findings of fact:
1. On January 22, 1951, there was introduced in the House of Eepresentatives a bill (H. E. 1918) which reads as follows:
FOR THE RELIEF OF DEWEY J. CRITES, JACK MAYTA, AND JAMES WILLETTE
Be it enacted by the Senate and Rouse of Representatives of the United States of America in Congress assembled, That the Secretary of the Treasury is authorized and directed to pay, out of any money in the Treasury not otherwise appropriated, to Dewey J. Crites, Cle Elum rural route 2, Washington, the sum of $18,000; to Jack Mayta, Cle Elum rural route 2, Washington, the sum of $17,000; and to James Willette, Cle Elum rural route 2, Washington, the sum of $12,000. The payment of such sums shall be in full settlement of all claims of the said Dewey J. Crites, Jack Mayta, and James Willette against the United States on account of damage to their farms from erosion and floods resulting from tbe control of the Yakima River for irrigation purposes by the Bureau of Reclamation of the Department of the Interior. Under the decision of the United States Court of Appeals for the Eighth Circuit in Coates against United States (181 F. (2d) 816 (1950)), action upon such claims may not be brought under the provisions of title 28 of the United States Code relating to tort claims because such claims are based on the exercise of a discretionary function or duty by the Bureau of Reclamation: Provided, That no part of the amount appropriated in this Act for the payment of any one claim in excess of 10 per centum thereof shall be paid or delivered to or received by any agent or attorney on account of services rendered in connection with such claim, and the same shall be unlawful, any contract to the contrary notwithstanding. Any person violating the provisions of this Act shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined in any sum not exceeding $1,000.
On July 4, 1952, while the bill was pending therein, the House of Representatives passed the following resolution:
Resolved, That the bill (H. R. 1918) entitled "A bill for the relief of Dewey J. Crites, J ack Mayta, and J ames Willette", together with all accompanying papers, is hereby referred to the United States Court of Claims pursuant to sections 1492 and 2509 of title 28, United States Code; and said court shall proceed expeditiously with the same in accordance with the provisions of said sections and report to the House, at the earliest practicable date, giving such findings of fact and conclusions thereon as shall be sufficient to inform the Congress of the nature and character of the demand, as a claim legal or equitable, against the United States, and the amount, if any, legally or equitably due from the United States to the claimant.
2. By deed dated November 16,1944, the plaintiff, Dewey J. Crites, and his wife, Dorothy J. Crites, acquired for the sum of $5,000, lots 1 and 2 and the southeast quarter of the northeast quarter of section 5, in township 19 north, range 16 east, W. M., Kittitas County, Washington, containing about 120 acres. Since that date they have been the owners of the land, erecting a house and barn in addition to other small structures. They have utilized the land for farming and dairying purposes.
3. By county treasurer's deed dated October 17, 1939, the plaintiff, James T. Willette, and his wife, Celia Willette, acquired all of blocks 4 and 5; lots 1 to 20 and lots 22,23, and 24, block 6; lots 1 to 20, block 7; lots 16 and 17, block 8; lots 8 to 17, block 9; all of blocks 10,11,12,13,14, and 15; lots 8 to 17, block 16; containing about 28.70 acres of the platted townsite of Teanaway, Kittitas County, located in the NW quarter NW quarter of Section 4, Township 19, north, range 16 E. W. M., Kittitas County, Washington. Since that date they have been the owners of the land. Their improvements on the land have consisted of a house and barn as well as other small buildings. They have engaged in dairying and chicken raising.
4. By deed dated October 6, 1944, the plaintiff Jack Mayta, acquired from his mother the northeast quarter of the northwest quarter (lot 3); southwest quarter of the northwest quarter; and, southeast quarter of the northwest quarter; section 4, township 19 north, range 16, east, W. M., Kittitas County, Washington, containing about 92 acres. Since that date he has been the owner of the land. He has made no improvements on the land, using it for growing hay and for pasturage.
5. The Crites land consists of the SE^NE^ and lots 1 and 2 in Section 5. Directly north of the SE14NE14 is lot 1, the northeast corner of which abuts the Northern Pacific Railroad right-of-way. Lot 2 lies directly west of lot 1. The Yakima River, flowing east, crosses the western boundary of lot 2 slightly north of the middle of the western lot line. From that point the river flows east and slightly south a short distance into lot 1 where it makes a very sharp turn, almost a U, and then flows southwest into the SE^NE^. It then crosses the west line of the SE14NEI4 (leaving the Crites land) continuing southwesterly a short distance, turns southeast and cuts diagonally across the southwest comer of the SE14NE14. About one-half of lot 2 and a small portion of lot 1 and of the SE14NE14 are south and the balance north of the river.
6. The Willette land lies immediately east of the Crites lot 1. The northern line is the right-of-way of the Northern Pacific, on the west is Crites' lot 1, on the east Mayta's lot 3 and on the south Mayta's SW^NW1^, Section 4. The channel of the river does not touch the land.
7. The Mayta land consists of lot 3, SW%NW% and SE14 NW14, Section 4. Lot 3 is a triangular tract bounded on the west by the Willette land and on the north by the Northern Pacific which runs in a northwesterly direction. Immediately south of lot 3 is the SE%NW%. The SW%NW!4 has the Crites land as a west boundary and the Willette land as a north boundary. After the Yakima River crosses the south line of Crites' land it flows east, slightly south of Mayta's south boundary, until it turns northeast, cutting across the southeast corner of Mayta's SE^NW^. A small tract of Mayta's land is south and the balance north of the river.
8. The Yakima Project of the Bureau of Reclamation is situated on the eastern slope of the Cascade Mountains in south central Washington. Approximately 450,000 acres are irrigated by the project in the Yakima Valley. The irrigated area extends from Easton on the northwest to Kenne-wick on the southeast, a distance of 175 miles. The project structures include 6 reservoirs, 1,690 miles of canals and laterals, 5 diversion dams and 2 hydroelectric power plants, together with transmission lines and pumping plants. The water supply for the project is obtained from the flow of the Yakima River and its tributaries supplemented by stored water from the 6 reservoirs including the return from irrigation diversions. The channel of the Yakima River is used for the conveyance of water released from the reservoirs, supplemented by the diversion canals. The 6 reservoirs have a combined capacity of 1,063,800 acre feet and their storage capacities in acre feet are as follows:
Keeckelus- 153,000
Kacliess_ 239, 000
Ole Elum_ 435,700
Bumping_ 33,800
Tieton_ 197,000
Olear Greek_ 5,300
The first three of these reservoirs affect the natural flow of water in the Yakima River above the lands of the plaintiffs. The latter three are in the tributaries of the Yakima which, flow into the Yakima downstream from the lands of the plaintiffs.
9. The project is divided into irrigating divisions and a storage division, which consists of the 6 reservoirs. Beginning at the upper end of the valley the irrigating divisions are as follows: Kittitas Division covers about 54,000 acres. In this division irrigation began in 1930 and full development was reached in 1940. Tieton Division, west of the City of Yakima, on the Naches River, covers about 27,000 acres. Irrigation began in 1911. Roza Division covers about 72,000 acres. Irrigation began in 1941 and is now about 95 percent developed. Sunnyside Division covers about 104,000 acres. Irrigation began in 1906. Kennewick Division covers about 19,000 acres. About 4,000 acres are now irrigated. The Roza, the Sunnyside, and the Kennewick Divisions are south and downstream from the city of Yakima and the land of the plaintiffs.
10. The plaintiffs' lands are approximately 4 miles downstream from the city of Cle Elum. Three of the reservoirs, Kachess, Keechelus, and Cle Elum, are 7 to 15 miles upstream from Cle Elum. Kachess Reservoir was constructed in 1912, Keechelus in 1917, and Cle Elum in 1933. All of the water for lands within the Kittitas Division of the project is diverted from the river into the Kittitas main canal at Easton, which lies below Kachess and Keechelus Reservoirs but about 12 miles upstream from Cle Elum.
11. The irrigation season on the project is considered to be from April 1 through October 31. The actual diverting of water for irrigation will vary from year to year from the first part of April to as late as July 10. The release of stored water from reservoirs for irrigation starts whenever the flow of the river is otherwise insufficient to supply the irrigation demands. The time of the first storage release varies from April 1 to as late as J uly 20, although it generally is necessary by June at the latest.
12. The function of the reservoirs is to store flood waters in the fall, winter, and spring for release during periods of low flow when irrigation is necessary. The storage of water in the reservoirs begins immediately at the close of the irrigation season. Maximum storage is reached after the peak of the spring floods and before the completion of the spring runoff. Floods occur on the Yakima Biver in the spring, and in some years there are also floods during the winter. Practically all of the water flowing above the reservoirs in a winter flood is stored, as well as a large part of the spring flood water. The reservoirs always take off the peaks of the spring floods. The principal purpose of the reservoirs is to store water for irrigation but, so far as possible, they are also used for flood control. By the use of the reservoirs, the control of the flow of the river is generally complete after storage releases begin in the spring or summer but not necessarily so during periods of high flow. In the latter periods, the degree of control depends upon the amount of space available in the reservoirs and the duration and intensity of the floods.
13. The United States maintains a stream-gaging station on the Yakima Biver just below a bridge at Cle Elum. The station is approximately four miles upstream from plaintiffs' lands. There are no appreciable inflows or diversions between the station and plaintiffs' lands so that the stream discharge at the station is about the same as at plaintiffs' lands. From the recording devices at the station and periodic checks by Government personnel, information is obtained, or can be calculated, showing the daily discharge of the river and the amount of water that passes the station at a given height on a fixed-staff gage.
14. Diversion from the river through the Boza Canal, for the irrigation of land within the Boza Division of the project, began in 1941. Additional land was put under irrigation each year. In 1945, 40,000 acres were irrigated and in 1953, 69,000 acres were irrigated. The Boza diversion dam is at a point downstream from plaintiffs' lands and also is below the Kittitas Division of the project. The reservoirs from which stored water may be obtained for the Boza Division are Keechelus, Kachess, and Cle Elum. The water diverted from the river at the Boza diversion dam includes the return flow from the irrigation of the land in the Kittitas Division, tributary inflow below the reservoirs, and water released from the three reservoirs. All the reservoirs of the project are operated as a unit and when the demand for water for the Boza Division increased, additional water was taken from Bumping and Tieton to supply the project lands below Boza. This water enters the Yakima downstream from the lands of these plaintiffs. A balance was maintained among all the reservoirs so that the full load of the increased demand from Boza did not fall on the three upstream reservoirs.
15. The record of the flow at the Cle Elum gaging station does not show any pattern of increased flows beginning in 1947; the defendant has not, since 1947, progressively released greater volumes of water during the irrigation season as more land is reclaimed for irrigation at points below plaintiffs' farms.
16. The average mean discharge in cubic feet per second for each of the ten-year periods, 1907 to 1946, as observed at Cle Elum, Washington, was as follows for the months indicated.
A discharge of 5-000 cubic feet per second at Cle Elum is considered flood proportions.
17. The Yakima River is a meandering, alluvial stream. Its bed of sand and gravel is unstable and the channel is unstable. The banks are sand and gravel mixed with silt and clay. Major changes in the bed and course of the river occur during periods of very high flow resulting from either winter or spring floods. At those times the bed may be cut down or built up. The water cuts the bank on the outside of bends, side channels are cut across bends, and those newly cut channels will be enlarged in later floods until eventually they become the main channel.
18. Aggradation of the river bed in the vicinity of the plaintiffs' lands had been taking place at a fairly substantial rate from 1935 to 1938. There was very little from 1939 to 1945 and, in fact, none at all between 1941 and 1942. Slight degradation was recorded in 1941 and 1944. Aggradation increased again in 1946 and a great deal took place during the flood of 1948, more than that which took place from 1940 to 1948. One measurement made during that flood showed aggradation of 1.04 feet. After the 1948 flood, aggradation continued at a rate less than during the 1935-1938 period.
19. The aggradation of the bed of the river, observed at the gaging station, extends a considerable distance upstream and downstream to Peoh Point which is about one mile below . plaintiffs' lands.
20. Because of the substantial reduction in the height, duration, and intensity of floods since the construction of the three upstream reservoirs, the channel of the river is more stable than it would be in the absence of the reservoirs. It is normal for an alluvial stream to go through cycles of aggra-dation and then degradation of the bed and the present condition of the bed of the river at plaintiffs' lands is not permanent. The cyclic character of the changes in the elevation of the river channel is indicated by the fact that aggradation did not begin until 1932 or 1933, although there was no substantial change in the pattern of the river flow after 1916-1917. A contributing cause of aggradation was a slide on August 31, 1947, at Peoh Point, one mile below plaintiffs' lands. The slide blocked the river for a short time and the new channel that was cut by the railroad for the river was narrower and its bed higher than the former channel. This restriction in the channel caused aggradation upstream to a point above plaintiffs' lands. Another contributing cause of aggradation was a straightening of a curve in the railroad above Cle Elum. This increased the slope of the river, causing the gravel in the bed to move downstream.
21. The operations of the Bureau of Reclamation, in using the channel of the Yakima River as an irrigation canal and the erection of the reservoirs above Cle Elum, while lessening the adverse effects of the spring runoffs on plaintiffs' lands, have had the effect of passing more water down the river adjacent to plaintiffs' lands than would otherwise pass during the spring, summer and fall, after the runoffs. This increase of water over the aggraded stream bed has caused plaintiffs' lands to be less useful during the year after the runoffs. The higher level of water in relation to the land prevents as much drainage as would have occurred with a lesser height of water.
The extent to which the irrigation projects, the slide at Peoh Point, or the change in the channel above Cle Elum contributed to the increase in normal action affecting the stream bed cannot be determined from the record. While it cannot be definitely determined, it is probable that there will be further changes aggrading or degrading the bed which will alter the relative height of stream and land. Cyclic changes of this kind are to be expected in streams of the nature of the Yakima River.
22. Prior to the year 1947, the farms of the plaintiffs were normally subject to flooding for one or two weeks during the normal spring runoff of flood waters and occasionally at other times of flood. Then the river waters would recede and the farms could again be utilized during all the other months of the year. In 1942, about 7 or 8 acres of the Crites land, about 6 acres of the Willette land, and 7 acres of the Mayta land were at an elevation approximately 10 feet higher than the bed of the river and the balance of the land was approximately 5 feet higher than the bed. The course of the river through and around plaintiffs' lands forms a typical oxbow. In 1942, the north bank of the river at the sharp bend on the Crites land was eroding and there was at least one overflow or side channel which extended all the way across the oxbow. crossing the land of each of the plaintiffs. In 1945, there was some water in 3 channels on the Crites land during the irrigation season and in at least one channel on the Willette and Mayta lands. In subsequent years the side channels, and particularly the main overflow channel crossing all three properties, became much larger and carried a substantial volume of water all through the irrigation season. The cutting of such side channels by flood waters with the subsequent enlargement of the principal channel across the oxbow is a normal process of an alluvial stream such as the Yakima River. The action of the river in making a cutoff across the oxbow in which plaintiffs' lands lie would occur at a more rapid rate in the absence of the reservoirs upstream because of the higher flows during flood periods. In time, this channel will probably be the main channel of the river.
23. As a result of the cutting of the overflow channels across plaintiffs' lands and the aggradation of the bed of the river, the usefulness of the land has decreased in the following respects: (1) the areas which, in 1942, were at an elevation of only about 5 feet above the bed of the river do not drain off to the extent they did formerly after the spring floods. (2) On the Mayta land some 40 acres that were formerly capable of growing hay are now usable only for pasture. (3) On the Willette and Crites lands, the areas of brush and trees, which formerly could be used to some extent as pasture are separated from the higher ground by the overflow channel and have other smaller channels traversing them.
24. On the Crites land of 120 acres, 1 or 8 acres at a higher elevation than the balance of the land are cleared and cultivated and a few more acres can be cleared. The balance of the land is brush and trees, including 21 acres on the south side of the river which have never been used by Crites. On the Willette land of 29 acres, 6 acres which are at a higher elevation than the balance of the land have been cultivated. The remainder is brush and trees. The Mayta land consists of 92 acres, of which 7 acres axe cleared and are presently usable, being at a higher elevation than the balance of the land. Twenty or 30 acres consist of pasture and the balance is brush and trees. None of the land covered with brush and trees should be cleared because of possible erosion during spring floods.
25. River bottom lands do not have a wide market and their value does not tend to change or fluctuate to an appreciable extent. The use of the land is restricted because of the danger of, and damage from, floods. The usable units are small and the land is in an area of larger fields suitable for general farming. Bottom land all along the river is about the same.
26. The lands of these three plaintiffs in November 1953 were being used in substantially the same manner as they had been used for a number of years by the same owners. As of November 1953, the value of the property of the three plaintiffs was as follows:
The value of these properties in 1947 was substantially the same as in November 1953.
As to plaintiffs Dewey J. Crites and James Willette, the lands In question are held in the names of their wives as well, although their names were omitted in both the bill (H. R. 1918) and the resolution referring the matter to this court. Findings 1-8.
Any action by plaintiffs in the District Court under the Federal Tort Claims Act, 28 U., S. C. 1952 ed., sections 1346, 2671-2678, 2680, would be barred by the "discretionary function or duty" exemption of that Act. The regulation of water flow by the Bureau of Reclamation in the operation of an irrigation project of the type we have here would seem, to come within that exemption. Dalehite V. United States, 346 U. S. 15; Coates v. United States, 181 F. 2d 816.
This evidence consisted of plaintiffs' own recollections and estimates of alleged losses with no distinction between those caused by floods and those chargeable to other causes.