National By-Products, Inc. v. United States

Delivered tbe opinion of tbe court:

Tbe plaintiff, owner of property on tbe south bank of Papillion Creek, a tributary of tbe Missouri River near Ornaba, Nebraska, claims that tbe Government breached its informal contract to construct a levee on tbe plaintiff’s side of tbe creek (south, or right) when it built one on tbe facing side (north, or left) to protect Offutt Air Force Base from occasional floods, with the result that tbe plaintiff’s property was flooded twice in consecutive months in 1964. Alternatively, plaintiff contends that, by constructing its levee on tbe left side of tbe creek without a corresponding one on tbe right bank, the Government knowingly induced south-bank floods and thereby took a flowage easement over plaintiff’s property for which the company is entitled to just compensation. The defendant answers that there was no contract made, that its agents lacked authority to agree to construct a levee on plaintiff’s side of the creek, and that the Government is not estopped to deny the existence of such an agreement or its agent’s authority. The defendant also asserts that there was no taking, that the damage to plaintiff’s property was “consequential”, and that plaintiff’s cause of action — if any — sounds in tort, beyond this court’s jurisdiction, and, in any case, is barred by 33 U.S.C. § 702c (1964) which relieves the United States from liability for flood damage in certain circumstances.

I.

To help in solving as many of these problems as we have to face, we open with a free-hand diagram of the area, put together from a number of the exhibits. Plaintiff National By-Products, Inc.’s properties (prior to the dealings involved in this case) are shaded, with its various buildings and three water wells indicated; it owned land on both sides of Papillion Creek. On the west this property is bounded by the track embankment of the Missouri-Pacific Railroad (MoPac) and a small plot owned by Herman Platt. On the east it abuts tlie embankment of the Chicago, Burlington & Quincy Railroad. (CB&Q). This section of the creek is bounded by the CB&Q railroad bridge on the east and a county road bridge on the west, and is approximately 2,400 feet in length. Further upstream (i.e., to the northwest) there are two additional bridges over the creek, one for the MoPac railroad, the other for U.S. Highway 73-15. The entire reach of the creek shown on the map is about 9,000 feet long. Offutt Field (home of the Strategic Air Command (SAC), vital to the nation’s security) lies north of Papillion Creek, and is separated from it by land owned by various individuals, mostly members of the Platt family.

Papillion Creek flows roughly southeast (from the top to the bottom of the diagram) at this point; it turns due east at approximately the lower edge of the diagram and empties into the Missouri River about 4y2 miles southeast of plaintiff’s property. In this area the Missouri flows substantially from north to south. In its natural state, Papillion Creek was sinuous with a relatively narrow bottom and sloping, wooded banks. Flooding was relatively frequent and intense, but of short duration. Prior to 1963 the Creek was lined on both sides with farm levees commenced in 1910, varying in height from 6 to 12 feet and composed of uncompacted spoil dredged from the creek bed. They hugged the creek banks with little or no setback, and provided a channel capacity of approximately 10,500 c.f.s. (cubic feet per second) upstream from plaintiff’s property.

Floods of from 10,150 to 15,800 c.f.s. occurred on six occasions from July 1948 to June 1960. The one in August 1959 breached the north-bank farm levee just below the MoPac bridge shown on the diagram, at or near the site of north-bank levee breaches in prior floods of 1917 and 1932, and as on past occasions flooded a large portion of the Offutt Field area which was the natural flood plain of the overflow en route to the Missouri River. Emergency repairs were made at the point of the breach by the Corps of Engineers.

The Flood Control Acts of 1941 and 1944 proposed a civil works project for the prevention of floods along the Missouri Kiver, involving the construction of dams and levees, including dikes along both sides of Papillion Creek. The Papillion Creek levees were part of two units, R-616 and R-613, each unit comprising a levee on the west bank of the Missouri and a “tie-back” portion along one side of Papillion Creek, connecting the Missouri River levee with high ground upstream on the creek. As authorized by Congress, each unit required assurances of local cooperation — providing of all lands, easements and rights-of-way; saving the government free from all claims for damage; and maintaining the structures in the future. These assurances were originally given; however, the Korean conflict in the early 1950’s caused suspension of the project. Afterwards, dams were constructed on the upper Missouri, decreasing the need for those portions of levee units R-616 and K-613 on the Missouri itself. In addition, the construction of Offutt Field reduced the number of farm acres along Papillion Creek on which the local drainage district could levy assessments. For these reasons the local assurances of cooperation were withdrawn for the whole unit, although there remained sentiment for the construction of the “tie-back” portions if they could be separately authorized. But no such partial unit was approved during the relevant time.

The flood in August 1959 which overran Offutt Field revived the interest of the Corps of Engineers in building levees along Papillion Creek, now as a military project to protect the SAC base. As the preliminary interchanges between the Corps of Engineers and the Air Force began, a difference in approach surfaced which was to continue throughout the planning stage. The Corps of Engineers, oriented to general civil works flood control projects, considered that a levee constructed only on the left (north) bank would increase the likelihood of flooding on the right (south) bank, with consequent claims for damages. The Corps therefore urged erection of the “tie-back” portions of the already designed levees, protecting both banks of the creek. The Air Force, interested in the more limited objective of protecting Offutt at the lowest possible cost, and feeling that it could not justify the expenditure of military funds for the protection of private property, refused to authorize the design of any improvements on the right side.

In September 1961 the Corps requested permission to add a right-bank portion to the design, in order to 'appease local interests opposed to the proposed left-bank levee, which appears at this time to have incorporated substantially the plan of the ultimately constructed Offutt levee — a levee set back from the creek as much as 400 feet, designed to contain “once-per-century” (1% probability) floods of 28,500 c.f.s., with an additional two foot freeboard. Permission for the requested additional authority was denied by the Air Force.

Congressional authorization for the construction of an Offutt levee as a military project was contained in Public Law 87-57, June 27, 1961, 75 Stat. 96, 106, “To authorize certain construction at military installations, and for other purposes”. This legislation earmarked $541,000 for real estate acquisitions, utility installations, and ground improvements. The Air Force considered the Offutt levee to be strictly a military project, as opposed to a civil works flood control project, although it was designed to fit into the eventual overall flood control program. Accordingly, the Oorps of Engineers did not include the Offutt levee in its July 1962 engineering report submitted to Congress concerning the proposed development of flood control measures on Papillion Creek, but referred to it as a military project which had recently been approved for construction.

The Engineers again requested the Air Force, in October 1961, to expand the project to cover the right bank. The CB&Q had expressed opposition to the proposed levee, and refused to cooperate by granting an easement or license to tie the levee into its rail embankment because of the increased danger to its tracks on the opposite (right) bank which would be shielded only by the more vulnerable farm levees. The railroad later estimated that without right-bank levee protection it would be necessary to raise its entire bridge embankment to allow water to flow under it in times of flooding, at an expense of $85,000, plus additional liability to damage claims by farmers east of its tracks who would then be subject to greater flooding. The Corps suggested the inclusion of a right-bank levee as a means for obviating the CB&Q objections. Tbe Air Force Regional Civil Engineer again refused.

During March 1962 tbe Corps personnel developed a compromise plan for dissolving tbe CB&Q objections in a way acceptable to tbe Air Force. Tbe railroad would be paid a large enough sum for its property to be acquired by the Government so as to include an amount sufficient for tbe CB&Q to build a levee on tbe right bank to protect its embankment. This extra payment would be justified to tbe Air Force as a reasonable estimate of tbe severance damages suffered by tbe railroad in tbe taking of its land. In fact, this appeared to be tbe cheapest method for the CB&Q to maintain tbe same degree of protection which it enjoyed prior to the new left-bank levee. The Air Force authorized tbe Corps to design a right-bank levee for tbe CB&Q, and to begin negotiations on this basis. When approached, the CB&Q agreed in principle, but refused to assume tbe responsibility of building the levee itself, due to the potential liability. Tbe most likely body to assume tbe job of construction was tbe local Eastern Sarpy County Drainage District; upon investigation, however, tbe Corps found this body defunct. Nevertheless, tbe difficulty was not considered insuperable, and negotiations continued, with tbe Corps feeling that it bad reached an agreement with tbe railroad on May 28,1962. In a June 1962 directive the Air Force agreed to pay not more than $15,000 to tbe CB&Q, providing tbe railroad took full responsibility for constructing tbe right-bank facilities. Tbe Air Force considered this a “connection charge” properly allocable to tbe cost of tbe Offutt flood protection project.

As soon as this directive reached tbe District Office of the Engineers Corps, it began negotiating with other landowners for purchase of tbe necessary left-bank land and permission on behalf of some yet-to-be-determined entity to' construct a comparable structure on tbe right bank. Two owners, in addition to tbe CB&Q, held property on both banks — plaintiff National By-Products, Inc. and Plerman Platt. Both bad been contacted in April 1962, soon after tbe first talks with tbe CB&Q on tbe compromise plan, to test their willingness to bold tbe Government harmless from future maintenance of a right-bank levee. Both seemed agreeable at that time, although Platt showed some displeasure with the planned settlement for his left-bank lands. On June 20, 1962, plaintiff’s local managers, Messrs. Kruger and Wasser, met with M. B. Cottrell of the Corps’ local Real Estate Division and reached an agreement on terms for the Government’s purchase of a portion of the company’s land needed in the construction of the left-bank levee and its donation of a right-of-entry for the construction of a levee on its own right-bank property. The details of this meeting will be discussed in Part II of this opinion; here it suffices that plaintiff’s representatives left the meeting with the impression that the Government had undertaken to build, or have someone else build, a right-bank levee for plaintiff’s protection, while the Government’s agent had no such understanding or intention. All later events were interpreted by both parties in accordance with their original, opposed understandings. Defendant prepared two separate instruments for plaintiff to execute, one dealing with acquisition of the left-bank tract, the other with a right-of-way for a right-bank levee. Plaintiff read them as one contract, with cross-obligations. The Government subsequently sought an extension of the “Offer To Sell” By-Products’ left-bank land, and plaintiff again interpreted the extension as including an undertaking on the Government’s part to build a right-bank levee. When the “Offer To Sell” was accepted by the defendant on October 26, 1962 and when occupancy was demanded on October 29, plaintiff was still under the impression that the Government was going to build its levee, or see that it was built, even though, it knew by this time that some difficulties had arisen. In December 1962 it learned from the CB&Q, for the first time, that the right-bank levee was not in the government contract. However, even when it executed a warranty deed for its left-bank property in February 1963, it still considered that the right-bank levee' would be built as soon as some technicalities were overcome.

In the meantime Herman Platt had adamantly refused to grant a right-of-entry to his right-bank property for the construction of a levee. He was much more concerned with the amount he was to be compensated for his left-bank lands than in the protection of this small five acre right-bank tract of farm land, and he refused to cooperate in any way until the Government offered him what he thought his left-bank land was worth — a figure which the Government considered exorbitant. Plaintiff was asked to and did attempt to persuade Platt to grant 'the right-bank authorization, but failed. Platt’s obstinacy stymied the whole right-bank project. Without permission to connect the right-bank levee to the embankment of the MoPac railroad, across Platt’s land, the CB&Q could not be protected. Without protection for its right-side embankment, the CB&Q refused to cooperate, and the Government was most reluctant to condemn the railroad’s property. Platt’s left-bank property could have been condemned and the Offutt side of the project begun, but under the limited authorization, on which the Air Force insisted from the beginning of the planning of the Offutt flood control project, the Engineers could not condemn Platt’s right-bank land. The CB&Q railroad, moreover, refused to exercise its power of eminent domain for fear that it would thereby incur responsibility, and hence liability, for the right-bank levee.

In this predicament, the Corps again requested the Air Force for a revised directive allowing it to expand the project to the right bank and condemn an easement on Platt’s right-bank land. It argued that the Air Force had recognized a legal principle for so doing in its agreement to pay the CB&Q an amount sufficient to construct the right-bank levee. Again, and for the last time, the Air Force denied the request in mid-September 1962, directing that the necessary left-bank interest of the CB&Q, be Condemned if an agreement could not be reached expeditiously. The Corps made a final offer to the CB&Q of $16,500 for the necessary licenses, which included enough for the railroad to build the right-bank levee, and then on October 25th condemned the railroad’s property, depositing the $16,500 in court as just compensation. Platt’s left-bank lands were also condemned.

With the needed left-bank tracts all acquired, the Offutt levee on the left bank was commenced in the winter of 1962-1963 and completed in the fall of 1963. The right bank remained unchanged.

A flood estimated at 18,300 c.f.s. occurred May 25-26, 1964, which overtopped and washed out a portion of the old right-bank levee bordering plaintiff’s property at a point 100-200 feet upstream from the CB&Q bridge, and passed over plaintiff’s property causing substantial damage to its rendering plant, buildings, equipment and inventory, and also damaging the CB&Q right-of-way south of the creek bordering plaintiff’s property on the east. After that flood subsided, another and more serious flood occurred June 16-17, 1964, when the flow in the creek peaked at a record 37,000 c.f.s. and again overtopped and washed through the old farm levee protecting plaintiff’s property at the same location as the flood of the previous month. Plaintiff’s property and plant were again inundated as before, causing less damage, however, because the plant had not by that time been fully restored to operation since the May flood and inventories had been reduced. The newly constructed Offutt levee on the left bank contained and withstood both the May and June floods, and protected the field as designed.

If a right-bank levee of equal height and strength to the new Offutt levee on the left side of the creek had been in place at the time of the May 1964 flood, it is reasonable to conclude that the right-bank levee would not have been breached or overtopped and the plaintiff would not at that time have sustained the damage to its property that it did suffer. However, given the same hypothesis, the June 1964 flood would have overtopped the dikes on both sides of the creek and would have flooded plaintiff’s property.

Had the new Offutt levee not been in position at the time of the May 1964 flood, it is reasonable to infer that on that occasion the right-bank levee protecting plaintiff’s property would not have been breached or overtopped 'and that plaintiff’s property would not have been flooded. Instead, the flood would have breached the old left-bank levee at one or more places upstream from plaintiff’s property and would thereby have so reduced the level and pressure of floodwaters against the levee bordering plaintiff’s property as to have left it unbreached. In the absence of the new Offutt levee the June 1964 flood, because of its unprecedented volume, would in all likelihood have overtopped and breached the old farm levees on both sides of this section of the creek.

The May and June 1964 floods accented so gTaphically the need for .a right-bank levee that all parties got together soon afterwards and agreed that one be constructed without delay. Mr. Platt, the plaintiff, the CB&Q and the MoPac gave the necessary permissions to enter their respective properties for this purpose, the CB&Q contributed $12,000 towards it, and Sarpy County agreed to sponsor the project for construction and maintenance of a right-bank levee. One was then constructed in accordance with the plans originally drawn by the Corps of Engineers.

II.

In plaintiff’s contract claim we have, as we shall see, the very model of one of the most ancient forms of consensual dispute — two parties sign the same papers or discuss the same subject, the one thinking he is consenting to a clear set of obligations, the other perceiving a different agreement, each having reasonable support for his own view, and neither realizing the other’s contrary position. Cf. WPC Enterprises, Inc. v. United States, 163 Ct. Cl. 1, 323 F. 2d 874 (1963).

For the unfortunate transactions in this mold, the law has developed general solutions which conform to our current sense of justice. Before a representation can be contractually binding, it must be in tbe form of a promise or undertaking— even though that promise may ¡relate to a state of facts over which the promisor has no power of determination, such as a warranty, see 1 Corbin on Contracts § 14 (1963) — and not a mere statement of intention, opinion, or prediction. This is the idea expressed in the draft of the Restatement- (Second) of Contracts, in its definition of a promise:

§ 2. Promise ; Promisor ; Promisee ; Beneeiciary.

(1) A promise is a manifestation of intention to act or refrain from acting in a specified way, so made as to justify a promisee in understanding that a commitment has been made.

The comments distinguish such an undertaking from “mere statements of intention”, and from “a statement of opinion or a mere prediction of future events.”

Comment 6 to § 2 is much to the point:

5. Manifestation of intention. Many contract disputes arise because different people attach different meanings to the same words and conduct. The phrase “manifestation of intention” adopts an external or objective standard for interpreting conduct; it means the external expression of intention as distinguished from undisclosed intention. A promisor manifests an intention if he believes or has reason to believe that the promisee will infer that intention from his words or conduct. Buies governing cases where the promisee could reasonably draw more than one inference as to the promisor’s intention are stated in connection with the acceptance of offers (see §§ 21 and 21 A), in Chapter 9 on the scope and meaning of contracts, and in Chapter 17 on mistake.

So also is § 21A, which takes account of differing responsibility for misconceptions:

§ 21A. Eeeect oe Misunderstanding.

(1) There is no manifestation of mutual assent to an exchange if the parties attach materially different meanings to their manifestations and

(a) neither party knows or has reason, to know the meaning attached by the other; or

(b) each party knows or each party has reason to know the meaning attached by the other.

(2) The manifestations of the parties are operative in accordance with the meaning attached to them by one of the parties if

(a) that party does not know of any different meaning attached by the other, and the other knows the meaning attached by the first party; or

(b) that party has no reason to know of any different meaning attached by the other, and the other has reason to know the meaning attached by the first party.

Under these principles, for a government representation that a right-bank levee would be built to be binding as a contractual obligation, it must have been in the form of an undertaking rather than a mere prediction or statement of opinion or intention. If the only reasonable interpretation of the Government’s actual representation, in light of the circumstances, is that it was an undertaking, then it is bound. If, however, the Government’s statement was subject to two reasonable interpretations, one that it was an undertaking, the other that it was a prediction, and the parties chose opposite ones, then there is no contract covering that representation, unless one side either knew or should have known the meaning attached to it by the other. The Government prevails, in other words, if we find that the parties arrived at a contract which provided for no right-bank levee, or that they reached no mutual agreement at all on this issue.

As usual, the greatest difficulty comes, not in formulating the governing principles, but in fitting them to the stubborn but gossamer “facts”. In this struggle we have always to remember that the plaintiff, as plaintiff, has the burden of persuasion. Likewise, we cannot allow sympathy for the company’s flood loss to push us into treating the United States as an insurer or “big daddy”. Nor is this a case in which the Government has all the bargaining power on its side, and may therefore be held to a higher responsibility than in more balanced arrangements. This is an ordinary common law contract action, involving a relatively simple land, transaction, and we recount and analyze the history on that basis.

There had been contacts between plaintiff’s and defendant’s agents prior to 1962. The record contains a document dated December 27, 1961, in which Carl Wasser, superintendent of plaintiff’s plant on the creek, granted the Government permission to enter upon its land “for the purpose of permanently placing excess spoil along the right bank of Papillion Creek”. This paper probably relates to a time when the Air Force was considering cutting back its plans for left-bank construction to a levee no higher than the existing fairn levees. The agreement is wholly typewritten, short, and in the form of a letter to the District Engineer. It specifically designates the Government as the entity to which the right is given. No payment was to be made for this use of plaintiff’s land.

The next contact took place on April 25,1962, when representatives of the Engineers Corps discussed the construction of a right-bank levee with Carl Wasser and elicited his agreement to recommend to his superiors that the company execute an agreement holding the Government harmless from future maintenance of such a levee. After the consent of the Air Force to the CB&Q compromise was obtained, see Part I, supra, plaintiff was approached to reach a final agreement on the purchase of land necessary for left-bank construction and the donation of right-bank land. On June 20, Wasser and James Kruger, district manager, met with M. B. Cottrell of the Corps of Engineers at the National By-Products plant. They discussed both the left- and right-bank prospects, the proposal of the Government to purchase the land for the left bank, and the anticipated gift of approximately five acres on the right bank. The men inspected the two tracts, and then entered into negotiations for the left-bank tract. The Government had appraised the land at $200.00 and the parties agreed, after some haggling, on a price of $230.00. Then the discussion turned to the donation of the right-bank land. The Corps representative first requested Mr. Kruger to draft a letter “to whom it may concern” stating that the company would grant permission to construct a dike on its land, with the one condition that the operation of three water wells would not be hindered. Kruger was agreeable to these terms, but requested that the Government draw up the letter since it “knew what it wanted”. Cottrell had the Corps legal staff prepare two documents, an “Offer To Sell Eeal Property” covering the land for the left-bank operation, and a letter addressed “To Whom it May Concern”, granting a right-of-entry for right-bank construction. The former was a standard printed form, titled “Department of the Army”, with only the legal description of the property, the time period of the offer (90 days), the sum agreed upon, the date, and plaintiff’s name typed in. Paragraph 11 of this form reads as follows:

(11) All terms and conditions with respect to this offer are expressly contained herein and the Vendor agrees that no representative or agent of the United States has made any representation or promise with respect to this offer not expressly contained herein.

The “To Whom it May Concern” letter was entirely typewritten, without other title, and read:

June 28,1962

To Whom it May Concern:

The undersigned, in consideration of mutual protection and convenience of the parties, hereby grants the permit and license to enter upon the lands hereinafter described for the purpose of construction of a levee and flood protection system on the right bank of the Papil-lion Creek. Subject, however, to the following terms and conditions:

It is agreed and understood by all parties that as part of the consideration for this permit and right-of-entry, that the levee and flood protection 'system will be constructed in such a manner as to protect the existing wells and pumps of the undersigned from any damage or harm, whatsoever, and that no action will be taken to disturb the continued flow of water from all wells and pumps and throughout the period of this permit or right-of-entry.

The land affected by this permit or right-of-entry is located in Sarpy Connty, Nebraska and described as follows:

NATIONAL BY-PRODUCTS, INC.

By (SGD.) R.S. Fleming

President

Official Tlüe

Cottrell delivered three copies of the “To Whom it May Concern” letter and seven copies of the “Offer To Sell” to the plant the nest day. These were forwarded to National ByProducts’ home office, signed there, and returned to the Government on July 2, 1962. Cottrell’s report to his own office indicates that he considered the two matters — left-bank and right-bank levees — as entirely distinct; the report does not say what he may have told the plaintiff’s representatives as to the details of the proposed right-bank construction; it closed with the remark “Negotiations were completed with the receipt of the executed forms.”

Because of the protracted negotiations with the CB&Q and the Air Force, see Part I, supra, the period of this offer slipped by, and on October 11, 1962, the Government requested and received an extension of the offer until December 31, 1962. On October 26th the Government accepted the “Offer To Sell”, and three days later made a demand for immediate occupancy (as provided in the contract). This was granted by return mail. A warranty deed was supplied by the Government and executed by the plaintiff on February 11,1963.

The next contact with the Engineers Corps appears to have been a meeting in early 1963 at the National ByProducts plant between Cottrell and Kruger discussing the situation. Whether the meeting was called at the request of Kruger or on the initiative of Cottrell is not recalled by either man. At this time Cottrell told Kruger that a regulation made it impossible for the expenditure of government funds directly on the right bank, but that the Burlington Kailroad was being “overpaid” in an amount sufficient to build the dike on its side. There is no indication in the record of any further meetings or exchanges between the Government and plaintiff’s officials prior to the postdiluvian gathering at plaintiff’s plant in August 1964 which began the negotiations leading to the construction of the current right-bank levee.

We have no doubt that plaintiff’s diligent counsel has produced all the evidence with any real bearing, but the inescapable fact is that what we have recited forms all the material from which we have to construct our replica of the transaction.

The documents: — The “Offer To Sell” and the “To Whom it May Concern” letter, supra, do not by themselves establish a contractual undertaking by the Government to build a levee to protect plaintiff’s plant. The “Offer To Sell”, read alone, is perfectly clear and unambiguous, and its obligations are certain. It deals solely with the land relating to the left-bank construction. Plaintiff does not attack it, but argues that the “To Whom it May Concern” letter is by itself a contract to build a right-bank levee, or, construed together with the “Offer To Sell”, forms such an agreement.

Eead objectively, the letter is not a contract to build a levee. It does not name or indicate any other party, but bears the very general salutation of “To Whom it May Concern”. Plaintiff’s witnesses testified they felt this was for defendant’s benefit — the letter could then be used by any contractor the Government chose. This curious explanation (a letter to the Government could obviously be used by any government contractor) does not, in any event, remedy the lack of affirmative evidence of a contract; at most it neutralizes what would otherwise be evidence of the absence of such a contract, and tends to justify plaintiff’s subjective construction of the document.

But in any case there is no expression of undertaking or commitment in the letter. By-Products points to the phrases “for the purpose of construction of a levee and flood protection. system on the right bank of the Papillion Creek” and “the levee and flood protection system will be constructed”. In context the former words 'serve only as a limitation upon uses for which persons would be permitted to enter plaintiff’s property and the latter form part of a sentence protecting the company’s water wells in the event of such entrance. Further, there are no other terms normally needed for a construction contract — no time period, no specifications as to form and height, no indication of the methods or procedures to be followed. We doubt that plaintiff’s officers, as good business men, would ever enter into an indefinite contract of this type with more direct relation to their .rendering business.

Nor do we find that these deficiencies in the “To Whom it May Concern” letter are cured by the existence of the “Offer To Sell”. The latter is limited to an offer to sell one piece of property, and in no way relates to any construction program anywhere. The former does not specifically or impliedly relate to the latter. The documents have different titles, were negotiated separately — though discussed at the same meeting, the “Offer To Sell” terms were determined first, then the terms of the donation — were in a different form, and were given to plaintiff in a different number of copies. Further, the “Offer To Sell” contained a disclaimer, in paragraph 11, of any additional representations or promises. We need not decide whether such language standing alone would require that the documents be read separately; it is at least evidence that they were not intended to be read together.

The plaintiff urges us to apply the rule that agreements contemporaneously made should be construed together. Even under that maxim, the most that is supplied to the “To Whom it May Concern” letter is a second party (the United States) to the pact. The document is not transformed from a right-of-entry onto the company’s land into a contract by the Government to build a levee or to cause one to be built; tbe undertaking or commitment absent in the letter is not supplied by the “Offer To Sell”.

The plaintiff also says that, since the Government drafted both instruments, they should be interpreted against it. But this is not the typical situation for invoking that rule. Cot-trell first suggested that the plaintiff’s representatives draft •the document showing its willingness to donate the land necessary for a right-bank levee. It was only at the company’s request that Cottrell had a government attorney prepare the letter. This transaction had none of the overtones or the problems of the Government’s thrusting lengthy, complicated documents, drawn up by the defendant alone, under the nose of a private party with the admonition to “take it or leave it”. On the contrary, this was more nearly an instance of mutual drafting in which neither party bears the brunt of uncertainties. See Deloro Smelting & Ref. Co., Ltd. v. United States, 161 Ct. Cl. 489, 495, 317 F. 2d 382, 386 (1963) ; 3 Corbin on Contracts § 559 (1960); cf. Kaiser Aluminum & Chem. Corp. v. United States, 181 Ct. Cl. 902, 923-24, 388 F. 2d 317, 329 (1967). The Government, which for the plaintiff’s benefit took the job of drafting the simple instrument, should not be made to carry alone the burden of misunderstandings arising from it — especially since there is no indication of uneven bargaining power or overreaching, and the document was of a type common to private land transactions rather than unique to government practice.

The negotiations: The plaintiff does not strongly suggest that the documents by themselves will establish its claim. It really relies on the papers, together with alleged oral representations and the circumstances surrounding the negotiations, plus the later conduct of the defendant, to prove the informal contract.

The major contention is that during the June 20, 1962, negotiating session Cottrell of the Engineers actually told Kruger and Wasser of plaintiff’s staff that the Government would build the right-bank levee, or see that it got built, as •an inducement to them to convey the 3.73 acre tract on the left side. The record is contradictory. Plaintiff’s personnel testified that Cottrell represented that the Government would build the right-bank leyee, or at least that the Government would have its contractor build it. Cottrell testified that he told Kruger and Wasser that the Government “could not construct the right bank,” but that it was “morally inclined to think that it was necessary.” He then “inquired about the possibility of their company granting someone the right to construct this right bank levee.” Cottrell was aware of, although not involved in, the negotiations with the CB&Q,, and may have investigated the possibility of the participation of the defunct Eastern Sarpy County Drainage District; therefore he knew of at least one of the possible bodies who could build the right-bank levee. However, he did not testify that he told plaintiff’s officials that some other body would build it. Both Kruger and Wasser testified that their impression was that the United States would build it.

Plaintiff’s witnesses could not remember any of the words actually used by Cottrell at the June 20th meeting. Cottrell attempted to paraphrase his presentation, but his testimony was somewhat colored from hindsight. The most we can gather from the testimony is that Kruger and Wasser received the impression that the Government would build the levee, and that Cottrell had not the slightest intention of creating such an impression. From all the evidence we conclude that a true picture of what was actually said requires us to discount somewhat the testimony of all the witnesses. It appears most likely that Cottrell did not say specifically that the Government was unable to construct a levee on the right bank; on the other hand, we do not believe that he said the Government would build one. We infer, rather, that he represented, or (in the words of plaintiff’s counsel) “advised that” a levee would be constructed on the right bank, without making any further clarification, either in the form of an undertaking on the part of the Government to build it, or of an explanation that someone else would have to do it.

We are led to this conclusion by several factors, in addition to the testimony we have just summarized. First, it was the consistent demand of the CB&Q, that the defendant build a right-bank levee but the Corps had refused to make such a promise to the railroad; it is highly unlikely that it would make it to National By-Products. It is clear from the record that the major party, as far as the Government was concerned, was the railroad; plaintiff and Platt were minor characters. Bight-bank protection was demanded as consideration by the CB&Q but was never, from the record, formally requested by plaintiff. We do not consider it probable that such a promise would be refused when demanded by the principal member of the other side, only to be given gratuitously to the one party which was most cooperative.

Cottrell also knew that Platt was going to cause trouble. Two days before the June 20 meeting with Kruger and Wasser he got his first rejection from Platt, and, the next day, his second. Following these encounters it seems unlikely that Cottrell would unqualifiedly represent that any progress on a right-bank levee was in the offing. It is doubly unlikely that he represented that the Government was going to see that it was done.

Plaintiff emphasizes the consistent attitude of the Corps of Engineers that right-bank protection should be provided, and the repeated requests to the Air Force to change the real estate and design directives to make it possible for the Corps to build the right-bank levee and condemn the necessary land. We are impressed with the public-minded and conscientious approach of the Corps throughout this matter. However, we are equally impressed by its continued devotion to the principle that its authority was limited by the directives of the Air Force. While there were a great number of requests to allow the Corps to undertake right-bank work, there were just as many rejections of such authority. That the Corps continued to follow proper channels in this regard is convincing that it would not disregard the directives in this one instance.

Plaintiff also urges that the Government’s dealings with the CB&Q in offering to pay, and actually paying into the court’s registry when condemning the railroad property, an amount sufficient to build a right-bank levee, indicates defendant’s assumption of the responsibility for the construction of that project (as well as an acknowledgement of its authority to do so). By-Products points, too, to the initiative taken by the Corps after the floods — to bring the various interests together and get a right-bank levee built — as a tacit admission of its obligation. Neither point persuades. The record shows that the Corps and the Air Force considered that the CB&Q had a legitimate contention that damages from a taking of an interest in its property for construction of a higher left-bank levee would include whatever expenses were necessary to protect its right-bank embankment from the potentially higher floods. The railroad’s position might not prevail in the condemnation proceeding, being opposed, as the Government recognized, by the argument that this constituted merely consequential damages (see Part III of this opinion); however, it is far from meritless. The CB&Q estimated that it would cost $85,000 to raise its embankment to a height sufficient to allow flood waters to flow underneath it, and that there would be future damage claims to farm lands lying to the south and east for flooding caused by waters flowing under the higher embankment. The Government reasonably considered the payment of $15,000 or $16,000, the cost of building 'a right-bank levee which would achieve the same protection for the CB&Q, as a proper settlement. Likewise, we attribute the Corps’ activity in later acting as a catalyst for local action to provide right-bank protection to its public-minded concern with the problem (or perhaps to fear of tort suits), and not to any feeling of contractual liability.

On the other hand, plaintiff’s later activity does cast doubt on the staunchness of its belief in the Government’s contractual obligation. By-Products learned definitely in December 1962 that the defendant was not going to build the levee, but the company continued to think it would be erected as soon as technicalities were worked out. Early in 1963 the Corps’ representative told plaintiff specifically that the Government’s funds could not be directly used but that the CB&Q was being “overpaid” in a sum sufficient to build the right-bank dike. At this time, plaintiff must have surmised that there was grave doubt that the Government recognized any obligation, but the company gave the United States a warranty deed to the left-bank property in February 1963, and the record contains no demand by the plaintiff upon the Corps at any time before the disastrous floods in May and June 1964.

These are the grounds on which we conclude that, at the tune of the “To Whom it May Concern” letter and the surrounding negotiations, the Government in fact made no more than a representation that in its then view the right-bank dike would eventually come into being. Such a representation, without more, would not indicate the Government’s commitment to build it, or its guarantee that it would be built. Bather, the representation would simply mirror the Government’s current belief, opinion or prediction, even its fervent hope, that this would occur.

The same set of factors, however, impel us to find that the two contrary understandings of the “deal” were both objectively reasonable in the totality of the circumstances. It was not unreasonable for the company to conclude that the United States had agreed to build the right-bank levee or see that it was erected. It was not unreasonable for the Government to think that it had merely revealed its belief that someone would construct the dike. The former would lean, in its thinking, on its general impression rather than precise words; the latter would stress, in its own mind, the exact language uttered or included in the documents.

Relati/oe responsibility: — Thus far, we have concluded that neither the documents themselves, nor the oral representations and other circumstances, nor the later actions of the parties, demonstrate more than that plaintiff and defendant took opposite, but reasonable, views as to the nature of the obligation represented by the “To Whom it May Concern” letter. Plaintiff is therefore not entitled to recover unless the Government knew or had a basis for knowing the other view held by By-Products, or for some other reason had the burden of clarifying the transaction (see WPC Enterprises, Inc. v. United States, supra, 163 Ct. Cl. 1, 323 F. 2d 874.)

In none of the evidence already mentioned can we find proof of the Government’s actual knowledge of plaintiff’s belief. The claimant points to one 'additional Corps document. The memorandum of a meeting held June 27, 1962 (after the negotiations with plaintiff) at which Cottrell was present, set forth this understanding of the Corps as of that date:

Construction plans call for right bank dike construction, on an informal basis, for the protection of the Chicago, Burlington and Quincy Railroad right-of-way, the National By-Products, Inc., rendering plant, and a five acre tract owned by Mr. Platt. Without right bank dike construction, the cooperation of the C.B. & Q. Railroad and the National By-Products, Inc., will be lost and the possibility of future damage claims, by these owners, arises.

From this plaintiff draws knowledge by the Corps of the Government’s contractual liability to the plaintiff, or at least its knowledge of the plaintiff’s view. To us, the more likely interpretation is that the Government feared the same sort of opposition from the plaintiff as it had received from the CB&Q if the plans for right-bank construction fell through. Plaintiff at this time had expressed an intention to sign an offer to sell its land needed for the left-bank project. The actual “Offer To Sell” was not yet in the hands of the Corps; being merely an offer and not an option, it was revocable at any time. We think that the Corps then felt that, when plaintiff discovered that the right-bank plans were not proceeding according to schedule, it would withdraw its offer and take a position like that of the CB&Q. (In fact plaintiff did discover some of the complications, when it was asked to intercede with the recalcitrant Mr. Platt.) The memorandum’s reference to “future damage claims” cannot have meant a claim for breach of contract since, admittedly, the CB&Q did not have a contract right to construction of the right-bank levee, and plaintiff and the railroad are lumped together in the sentence; the reference must have been to tort claims (or possibly suits for just compensation). In short, the government memoranda are candid, and they reveal no inkling of actual knowledge of the plaintiff’s interpretation of the agreement.

Did the Government have “reason to know” of the plaintiff’s view, or in the Restatements words, did it have “information from which a person of ordinary intelligence would infer that the fact in question does or will exist”, or is the inference that “there is such a substantial chance of the existence of the fact that, if exercising reasonable care with reference to the matter in question, the person would predicate his action upon the assumption of its possible existence” ? The most that the Corps knew or could be expected to know was that a person in plaintiff’s position would be interested in protecting himself from the greater chance of floodwaters caused by left-bank construction. The defendant’s agents could reasonably assume, however, that National By-Products inquired on its own and was 'satisfied with the CB&Q compromise arrangement — after 'all the plaintiff could easily consult, and be expected to consult, with its neighbor, the railroad, which was in the same danger — and that it would continue to look after its own interests. Or the Government could well assume that plaintiff was otherwise satisfied with the probability that the dike would be built. On the basis of the then situation and plaintiff’s actions, the Corps would not be required to assume that plaintiff contemplated that the Government would build a right-bank levee, or guarantee that one would be built. After all, this was a rather commonplace, several-cornered real estate transaction in which the Government was trying to put a “deal” together. In ordinary land transactions the parties act to protect their own interests, and there is no reason to think that they will act differently when the Government is a party. Nor is there reason in an instance like this for requiring the Government to act differently from any other party, with a greater obligation to disabuse other participants of their unknown misapprehensions. The case is therefore quite different from WPC Enterprises, Inc. v. United States, supra, 163 Ct. Cl. at 7-12, 323 F. 2d at 877-80, in which we held that the Government, which bore the initial burden of ambiguity in defective specifications, did not escape that burden when negotiations to clarify the defect resulted in continued ambiguity and difference of interpretation. Here, there was no root fault on the part of the Government from which the later misunderstanding flowered.

The truth is, we suppose, that, here as in so many dealings, both parties talked in too-vague generalities and refrained from putting the precise, pointed queries which would have exposed the unresolved ambiguity. Each may have been reluctant to ask the exact question or to detail meticulously his own understanding for fear that precision would be detrimental to his interest or would destroy the whole transaction. In any event, their words flew across the room without ever colliding. Both were responsible for the failure to clarify, but even so we are inclined to see the plaintiff as the party with the greater responsibility since it was seeking to pin a contractual obligation on another. The company’s understanding is not flatly contradicted by the documents, but neither is it at all spelled out in those writings. It would be natural to tie down through explicit inquiry that those unclear papers embodied the large-scale undertaking plaintiff envisaged. As time went on, there were other points at which further inquiry would have been natural. For instance, after the dealings with Herman Platt (which took place well before the “Offer To Sell” was accepted) plaintiff could have asked the Corps of Engineers about the true arrangements for the construction of the right-bank levee. The Government did not show any willingness to condemn Platt’s land, which it otherwise would have done, but told plaintiff that the “entire project, for both banks” depended upon Platt’s cooperation. This was certainly one signal, and there were others (-as we have detailed above).

For these reasons we hold that plaintiff has not established that there was any contractual obligation on the part of the Government to build, or have built, a right-bank levee for the company’s protection.

III.

The alternative claim is that the United States has taken a flowage easement over plaintiff’s property by building a levee to protect the federal land without providing'similar security for plaintiff’s right-bank property when the Government knew that the new left-bank dike would increase the likelihood of right-bank flooding. We adopt the trial commissioner’s findings that if the new left-bank levee had not been built plaintiff’s property would not have been flooded, at least by the May 1964 flood, and that defendant’s engineers contemplated that a natural consequence of the construction of the left-bank levee would be a greater chance that plaintiff’s property would be flooded when the creek reached a certain stage. Nevertheless, we hold that defendant has not taken any interest in plaintiff’s land requiring compensation under the Fifth Amendment.

The Supreme Court and this court have recognized that the United States can appropriate land to its own use as effectively by flooding it as by occupying it in other ways. Pumpelly v. Green Bay Co., 80 U.S. (13 Wall.) 166 (1872) (applying Wisconsin constitutional provision similar to Fifth Amendment); United States v. Lynah,, 188 U.S. 445 (1903); United States v. Welch, 217 U.S. 333 (1910) ; United States v. Cress, 243 U.S. 316 (1917); Jacobs v. United States, 290 U.S. 13 (1933); Cotton Land Co. v. United States, 109 Ct. Cl. 816, 75 F. Supp. 232 (1948). It is equally settled, however, that not all floodings caused by or partially attributable to governmental activities amount to a taking. Jackson v. United States, 230 U.S. 1 (1913); Hughes v. United States, 230 U.S. 24 (1913); Cubbins v. Mississippi River Comm'n, 241 U.S. 351 (1916); Sanguinetti v. United States, 264 U.S. 146 (1924); United States v. Sponenbarger, 308 U.S. 256 (1939); Matthews v. United States, 87 Ct. Cl. 662 (1938) ; Kirch v. United States, 91 Ct. Cl. 196 (1940); North Counties Hydroelectric Co. v. United States, 108 Ct. Cl. 470, 70 F. Supp. 900 (1947); North Counties Hydro-Electric Co. v. United States, 138 Ct. Cl. 380, 151 F. Supp. 322, cert. denied, 355 U.S. 882 (1957); B Amusement Co. v. United States, 148 Ct. Cl. 337, 180 F. Supp. 386 (1960) (Congressional reference case); North Counties Hydro-Electric Co. v. United States, 170 Ct. Cl. 241 (1965) (Congressional reference case).

The Government has been held liable where the construction of a dam or other obstruction in a stream results in either permanent flooding (Pumpelly v. Green Bay Co., supra; United States v. Welch, supra; Cotton Land Co. v. United States, supra), or “a permanent liability to intermittent but inevitably recurring overflows” (United States v. Cress, supra, 243 U.S. at 328). But the courts have held that one, two or three floodings by themselves do not constitute a taking. The plaintiff must establish that flooding will “inevitably recur”, in the phrasing of the Oress case. See the three North Counties Hydro-Electric Co. cases, supra; B Amusement Co. v. United States, supra; Goodman v. United States, 113 F. 2d 914, 918 (C.A.81940).

The distinction between “permanent liability to intermittent but inevitably recurring overflows”, and occasional floods induced by governmental projects, which we have held not to be takings, is, of course, not a clear and definite guideline. This is understandable, since the rule is really an application to this particular situation of the general principle that the Government is not liable under the Fifth Amendment for “consequential damages” arising from the carrying on of its lawful activities. See, e.g., Transportation Co. v. Ohicago, 99 U.S. 635 (1879); Gibson v. United States, 166 U.S. 269 (1897); United States v. General Motors Corp., 323 U.S. 373 (1945). This “consequential damages” principle is necessarily a somewhat flabby standard which has taken on meaning only through developing case law. See the discussion in Cotton Land Co. v. United States, supra, 109 Ct. Cl. at 828-32, 75 F. Supp. at 233-35; 4 Nichols on Eminent Domain § 14.1, at 476 (rev. 3d ed. 1962). Some of the cases on flooding expressly apply the “consequential damages” test. See, e.g., Jackson v. United States, supra, 230 U.S. at 23; Sanguinetti v. United States, supra, 264 U.S. at 150; Danforth v. United States, 308 U.S. 271, 286-87 (1939); Matthews v. United States, supra, 87 Ct. Cl. at 720-21; B Amusement Co. v. United States, supra, 148 Ct. Cl. at 341, 180 F. Supp. at 389. The essential inquiry is whether the injury to the claimant’s property is in the nature of a tortious invasion of his rights or rises to the magnitude of an appropriation of some interest in his property permanently to the use of the Government.

In this instance plaintiff has failed to establish that the floodings which occurred in May and June of 1964 will inevitably recur. Those floods were the result of a particular “concatenation of physical conditions”, North Counties Hydro-Electrio Co. v. United States, supra, 170 Ct. Cl. at 248, which plaintiff has not shown will continue to occur. The basic fact is that the Papillion Creek has always been subject to flooding. Plaintiff’s levee was sufficient to withstand a flood of 10,500 c.f.s. if it were not breached at a lower level. Floods of greater height occurred quite frequently but plaintiff has largely been spared major flooding in the past because other dirt levees had breached at sufficiently low levels to relieve the pressure on By-Products’ levee. There is no showing that this would not be the general rule in the future.

Moreover, the floods of 1964 were severe by Papillion Creek standards. There is no proof that such rainfall and resulting floodwaters will recur inevitably in the future. Another factor in 1964 was that the downstream portion of the creek was unusually constricted with debris and silt at the time of those floodings, creating greater pressure on plaintiff’s levee. Again, there is no reason to believe that these conditions will remain. In fact, substantial channel straightening and debris removal was undertaken in 1964. Also, the flooding of plaintiff’s property was partially due to the weakness of its own levee, a condition which would not necessarily continue into the future. Actually, the new levee constructed by Sarpy County, with the cooperation of the plaintiff and its neighbors, now insures that such flooding will not inevitably recur.

Plaintiff urges that the Government’s foreknowledge of the consequences of building its left-bank levee requires a contrary result, relying upon Jacobs v. United States, supra, 290 U.S. at 16. There the Supreme Court was presented only with the question of the propriety of awarding interest as part of the damages for a taking. In passing, however, the Court said:

The Government contemplated the flowage of the lands, that damage would result therefrom, and that compensation would be payable. A servitude was created by reason of intermittent overflows which, impaired the use of the lands for agricultural purposes. * * * There was thus a partial taking of the lands for which the Government was bound to make just compensation under the Fifth Amendment.

The opinion of the lower court, 45 F. 2d 34 (C.A. 5 1930), reveals that the construction of a dam downstream from that plaintiff’s property caused him to suffer overflows in addition to and greater than any to which he was historically vulnerable, that they occurred only in the winter and early spring months, and that they prevented plaintiff’s use of his lands for short periods only. We do not read the Supreme Court’s short statement as establishing foreseeability of damage as a new criterion for a taking, nor as removing the requirement of proof that the intermittent overflows will inevitably recur. The latter requirement was met in the Jacobs case by careful government surveys establishing that the plaintiff’s land would be subject to predictable overflows more frequently than before the dam was built. Jacobs v. United States, supra, 45 F. 2d at 36. It is a long settled principle that a taking is not affected by the extent of the benefit to the Government, but solely by the amount of injury to the landowner, Pumpelly v. Green Bay Co., supra, 80 U.S. (13 Wall.) 166. Similarly, the Government’s foreknowledge will not convert an otherwise insufficient injury into a taking. At most it could strengthen the plaintiff’s case in a tort action.

We conclude that plaintiff has not shown that the damage to its land rises above a temporary, incidental injury — in the nature of a tort, if anything — and therefore we find that there has been no taking of its property requiring just compensation.

On neither of its grounds is the plaintiff entitled to recover. Its petition must be dismissed.

Findings of Fact

The court, having considered the evidence, the report of Trial Commissioner C. Murray Bernhardt, and the briefs and arguments of counsel, makes findings of fact as follow:

1. Plaintiff is an Iowa corporation with its principal place of business in Des Moines. It is in the business of processing animal by-products, and owns and operates an animal rendering plant on its property located in Section 14, Township 13 North, Range 13 East, in Sarpy County, Nebraska.

2. Plaintiff’s property is roughly triangular in shape. It is bounded generally on the north by the south or right bank of Papillion Creek (a nonnavigable tributary of the Missouri River known colloquially as the Papio), on the west by Herman Platt’s land from which it is demarked by an abandoned (in 1955) right-of-way embankment of the Chicago, Burlington & Quincy Railroad (CB&Q), and the embankment of the Missouri Pacific Railroad (MoPac), and on the east by the existing CB&Q tracks. The CB&Q tracks cross Papillion Creek on a railroad bridge at the northeast comer of the plaintiff’s property. A county road bridge crosses the creek at the northwest corner of Herman Platt’s land, approximately 2420 feet above the CB&Q bridge and two other bridges, the MoPac and U.S. Highway 73-75 bridges, cross the creek about 7000 feet further upstream. Plaintiff owned another small strip of land on the north or left bank of Papillion Creek adjacent to the west side of the CB&Q right-of-way. This latter parcel was acquired by the defendant by purchase as hereafter appears.

3. Offutt Field lies generally north of Papillion Creek and is separated from the creek by land owned by various individuals, mostly members of the Herman Platt family. This privately owned land north of the creek, and much of Offutt Field, is in the low natural floodplain of Papillion Creek.

4. The basin of Papillion Creek lies entirely in eastern Nebraska, has a length of about 41 miles, averages 12 miles in width, and occupies a drainage area of 394 square miles. Papillion Creek is formed by the merger, 14% miles above its mouth, of Big and Little Papillion Creeks. About 5% miles further down, West Branch enters Papillion Creek, somewhat north of Offutt Field. Papillion Creek itself empties into the Missouri River about 4% miles southeast of plaintiff’s property. In that area the Missouri River runs generally north to south.

5. In its natural state Papillion Creek was sinuous, with a relatively narrow bottom and sloping, wooded banks. Water discharge capacities were limited and flooding was relatively frequent and intense, although of short duration. The described conditions still (at trial time) prevail generally in the upstream reaches of the creek, but the characteristics of portions of the downstream reaches have been changed radically by channel straightening projects followed by degradation and lateral erosion. The channel of Papillion Creek below plaintiff’s property to its junction with the Missouri River had not been straightened or improved for drainage purposes prior to 1964, at which time channel straightening and snagging was begun.

6. For many years prior to 1963 both sides of Papillion Creek downstream from the junction of Big and Little Papil-lion Creeks were lined with farm levees varying in height from 6 to 12 feet. These farm levees were made of un-compacted spoil dredged from the creek bed, and hugged the creek banks with little or no setback. Channel bottom widths ranged from 70 feet near the Missouri River to 30 feet at the junction of Big and Little Papillion Creeks. Channel depths from the top of the farm levees to the bed of the creek ranged from 22 to 26 feet. The channel capacity at the levee top at certain points substantially upstream from plaintiff’s property ranged from 10,500 c.f.s. (cubic feet per second), to 8,500 c.f.s. However, because of the irregular levee top profiles 'and the lack of compaction in the construction and repair of the levees, they were often breached at much lower discharges.

7. From 1948 to 1960 six floods occurred in Papillion Creek as shown in the following tabulation, which also reports the peak discharges on each occasion as taken at Fort Crook, a point 1 miles upstream from the area in litigation:

Date Peak e.f.s. at Port Crook

July 29, 1918-13,900

July 12, 1950_10,600

June 2, 1951_10,150

July 30, 1958_14,400

August 2, 1959- 15, 800

June 20, 1960_14,200

8. In the flood of August 2,1959, the farm levee on the left bank of Papillion Creek was breached % mile downstream from the MoPac bridge crossing the creek. The breach in 1959 occurred because of the instability of the levee at this point. The levee was not overtopped, but was breached when the water level was one foot below the top of the levee. In previous floods, particularly those in 1917 and 1932, the left bank levee at or near this same point was breached because, in addition to the lack of compaction of the levee and its irregular top profile, the natural course of drainage in times of high water was across the left bank and to the north and east into the Missouri Eiver, the southern portion of Offutt Field lying in the natural flood plain.

9. The levees along both banks of Papillion Creek prior to 1963 had been built as farm levees over the years since 1910 by local farmers and the Eastern Sarpy Comity Drainage District. They were constructed and maintained with spoil dredged up from the creek bed. As the creek bed was periodically cleaned out and the spoil deposited on the levees the latter became progressively higher and had an irregular crest. The levees were not compacted or systematically maintained. After the 1959 flood, which had breached the levee and flooded portions of Offutt Field, emergency repairs were made at the point of the breach by the Corps of Engineers.

10. In connection with the Flood Control Acts of 1941 and 1944 a plan had been devised for flood control protection on the Missouri and Mississippi Eivers. Levee unit K-616 of the plan contemplated the construction of levees down the west (i.e., right) bank of the Missouri Eiver and 6 miles up the left bank of Papillion Creek to a point above Offutt Field near United States Highway 73-75 Bridge. Complementing this phase of the overall plan, levee unit R-613 involved a levee on the right bank of Papillion Creek continuing on down the west bank of the Missouri River to the Platte River. The plan, which was a civil works project, had been approved by Congress and, pursuant to statute, was contingent on the cooperation and contribution of local interests. The Korean conflict caused a suspension of the plan. In 1956 consideration was given to resuming construction of the project. In the meantime, several upstream dams had been constructed on the Missouri River and the local interests considered that the proposed flood control program was no longer necessary on the Missouri River. The construction of Offutt Field had caused a decrease in the number of farm acres upon which assessments could be made to support any project. For these reasons, local interests withdrew their assurances of cooperation and contribution, although such interests were still in favor of the construction of levees on both sides of Papillion Creek upstream to the United States Highway 73-75 Bridge. The congressional authorization had been for the entire project and not for just part of it. The Corps of Engineers sought authorization to construct, as a civil works project, just the tieback portions of the R-616 and R-613 levee units, pointing out that the Government did have assurances of local cooperation for this portion of the projects. Authorization was denied by the Office of the Chief of Engineers pending a complete survey of the flood control needs of Papillion Creek requested by Congress.

11. At the times relevant to this litigation, the United States Army Corps of Engineers personnel referred to herein were organized as follows: The Office of the Chief of Engineers in Washington (sometimes abbreviated OCE); below this the United States Army Engineer Division, Missouri River (Division Office or MRD); below this the Omaha District of the United States Army Corps of Engineers (District Office). Each of these units was divided into several divisions (Military Design, Engineering, Beal Estate, etc.). All actual survey and design work was carried out by the local District Office and reviewed by the Division Office. Final authority for civil works projects lay in the “using service”, in this case the Chief of Staff of the United States Air Force. In order to coordinate using service and Corps activities at the Division level, the Air Force maintained an office of Kegional Civil Engineer, Missouri Biver (AFBCE), apparently with authority to issue binding directives. Also interested in policy decisions were Strategic Air Command engineering personnel attached directly to Offutt Field, though their only official voice was through the ranks of the Air Force.

12. Prompted by the August 2 flood, on August 7, 1959, the District Office wrote the Chief of Engineers through the Division Office that the Air Force was expected to request the Corps of Engineers to develop and recommend a plan of improvement for protection of Offutt Field from future floods in Papillion Creek. The Strategic Air Command (SAC) was headquartered at Offutt AFB, which fact emphasized the importance of protecting Offutt Field from floods. In its letter of August 7, 1959, the District Office of the Corps recommended to the Chief of Engineers that some flood control measures be devised to protect Offutt Field. The District Office advised that protection could be had either through construction of levee unit B-616, or by construction as a strictly military project of a levee on the left bank of Papillion Creek from the CB&Q railroad bridge up to United States Highway 73-75 Bridge. The second alternative was considered to be substantially less expensive, but “Local interests might be expected to offer some objections to this plan on the basis that they feared it would increase flood damages on the right bank.” The District Office believed that the potential flood damage to Offutt Field would not justify the cost of proceeding with levee unit B-616, but recommended that the tieback portion of Br-616 involving about 8,814 feet along the left bank of Papillion Creek from the CB&Q railroad bridge to a point slightly beyond United States Highway 73-75 Bridge was economically justified. It is assumed that the reference by the District Office to B-616 was intended to contemplate levees on both sides of the creek.

13. On October 2, 1959, in response to a request from AFBCE, the District Office of the Corps issued a report on a potential project to provide protection for Offutt Field from floods originating from Papillion Creek, and concluded thah—

* * * the tieback portion of Unit B-616 (a continuous levee system on both banks of Papillion Creek from Highway 75 to the Missouri Biver), offers the best solution to the flood problem.

* * * A local levee for protection of Offutt [i.e., on the left bank only of Papillion Creek] might be constructed as a military project but it should be recognized that unfavorable local reaction may be encountered and the_ possibility of future damage claims should be anticipated.

The report suggested the possibility of securing damage or flowage easements in the event the second alternative were chosen. The proposal of the District Office to construct levees on both sides of Papillion Creek up to United States Highway 73-75 Bridge was concurred in by the Division Office and by the Chief of Engineers. The levees contemplated by the Corps of Engineers on both sides of Papillion Creek would have provided a discharge capacity of 28,500 c.f.s., would have cost about $1,000,000, and would have given protection against what is known as a one-percent or 100-year flood. As of November 5, 1959, it was the belief of the Corps of Engineers that the Air Force at that time was interested only in a levee to protect Offutt Field. In November, 1960, the Corps was requested to design a levee, on the left bank only, to protect Offutt Field.

14. By May 4,1961, the Corps had drawn plans for a levee on the left bank of Papillion Creek, which is here called the Offutt levee since it was designed as a military project solely to protect Offutt Field. The design features of the plan called for the construction of a levee set back from the left bank of the creek at varying distances ranging as far as 400 feet, including that reach between the county road bridge and the CB&Q bridge downstream from it, part of which reach faced the plaintiff’s property across the creek. The levee was to be constructed by compacting the earth with sheepfoot rollers and other road construction equipment so that it would be solid and impermeable. The old left bank levee would be used as borrow for the new Offutt levee and the berm separating the latter from the creek. Except for one seven-foot stretch, the new Offutt levee was to be from two to three feet higher than the levee which it was to replace, and in addition would have a freeboard of two feet as a safety factor. Because of the wide berm created by the setback feature of the levee the reach of the stream primarily relevant to the present issues could accommodate a designed flow of 28,500 c.f.s., without topping the new Offutt levee banks, although below the CB&Q railroad bridge (which marked the lower end of the new levee) the creek would not accommodate 28,500 c.f.s. Most of the land for the berm between the location of the new levee and the left bank of the creek was to be acquired in fee simple title except for the CB&Q right-of-way, where an easement or license would be acquired so that the use of it for railroad purposes would not be interfered with. The interests of the CB&Q and some of the landowners ultimately were acquired by eminent domain. Plaintiff’s tract of 3.73 acres, adjoining the CB&Q right-of-way, was purchased. The various property interests were acquired by the Corps at the direction of the Air Force.

15. In September 1961 the Corps of Engineers again recommended that the Air Force consider whether any further action should be taken in regard to constructing a right bank levee. While it saw no “significant real detrimental” effects on opposite bank areas in the vicinity, it feared possible damage suits that affected local interests might file on the theory that the Offutt levee on the left bank might result in breaches of the existing right bank levees in flood stages, particularly as to the reach of Papillion Creek from 1,310 feet above to 1,690 feet below United States Highway Bridge 73-75. (Note that this reach of the creek was about a mile above plaintiff’s property.) The Air Force was still not interested in improving the right bank levee as an Air Force military pro j ect.

16. In the course of negotiations with the District Office for acquisition of land needed for construction of the Offutt levee, the CB&Q, railroad objected to making a requested conveyance unless the project were expanded to include a right bank levee matching the proposed Offutt levee on the left bank, from the CB&Q bridge upstream to the county road bridge crossing Papillion Creek. The railroad felt that to raise and strengthen the left bank levee without a corresponding improvement on the right bank would subject its railroad tracks south of the creek to the danger of being washed out by flood waters breaching the insecure farm levees on the right bank. Without right bank protection, the CB&Q contemplated that it would be required to raise the height of its embankment at a cost of $85,000 and perhaps increased liability to neighboring landowners for 'additional flooding. A proposal by the Air Force to meet the railroad’s objection by reducing the height of the proposed Offutt levee to the level of the old right bank levee was opposed by the District Office of the Corps because it would not provide required flood protection and would not satisfy the railroad. On October 27, 1961, the Corps of Engineers again recommended to the Air Force that a levee be constructed on the right bank, this time as a means of obtaining CB&Q cooperation. Again it was rejected.

17. After protracted correspondence and several conferences, the Corps of Engineers persuaded the Air Force that the latter’s request to redesign the levee project so as to reduce the height of the left bank levee to correspond to the right bank levee would be ineffectual in protecting Offutt Field from floods. On March 19,1962, the Air Force requested the Corps to continue negotiations for acquisition of real estate in connection with the original design of the Offutt levee, and to perfect agreements with the property owners which would (a) satisfy the objections of the CB&Q, railroad, (b) preclude Air Force responsibility for “construction or future maintenance from Air Force funds on the right bank”, and (c) “preclude claims against the Air Force from right bank owners who might suffer future flood damage”.

18. As of March 29, 1962, the CB&Q railroad refused to give permission to the Government (i.e., to sell its property) to construct a left bank levee unless some protection was given to the right bank. The Chief of the Beal Estate Division of the District Office recommended to the Division Engineer that the real estate and construction directives be revised to permit acquisition of necessary real estate interests and authority to perform required construction on the right bank in order to satisfy the CB&Q.

19. In the meantime, on March 23, 1962, the Chief of the Military Design Branch of the Engineering Division of the District Office of the Corps had been instructed orally by AFBCE to prepare plans for a right bank levee on the creek from the CB&Q railroad bridge upstream to the county bridge. The requested plans were drawn up. It was planned to request the CB&Q to accept an amount for its left bank land sufficient for it (the CB&Q) to construct the right bank levee designed by the Corps of Engineers. The CB&Q was willing to cooperate to the extent of accepting an amount adequate for constructing a right-bank levee, but did not want to be personally involved in the construction of the levee and preferred to turn the money over to the local flood protection district to do the work. In view of the fact that the old Eastern Sarpy County Drainage District had been deactivated and thus could not perform the construction of the right bank levee, the Corps of Engineers considered the feasibility of including the right bank work in the existing project for the left bank,

20. On April 25, 1962, representatives of tbe Corps of Engineers discussed witb tbe plaintiff’s plant supervisor tbe proposed right bank levee and secured tbe latter’s oral promise to recommend that bis superiors execute an instrument bolding the Government harmless from future maintenance of a right-bank levee. On the same day they got similar oral assurances from Herman Platt (which he later refused to fulfill). Platt expressed displeasure with the left-bank plans, and the Corps representatives suggested that he be approached solely about the right-bank matter before negotiations for his left-bank property were begun.

The plaintiff had had previous contacts with the Corps of Engineers on at least one occasion. On December 27, 1961, Carl Wasser executed a document granting the Government permission to enter upon its land “for the purpose of permanently placing excess spoil along the right bank of Papillion Creek.” The agreement was wholly typewritten, short, and in the form of a letter to the District Engineer. It specifically addressed the District Engineer, and expressly designated the Government as the party to whom the right of entry was given. No payment was to be made for this use of the plaintiff’s land.

21. On May 28, 1962, representatives of the CB&Q railroad met with representatives of the Corps of Engineers and of the Air Force. A tentative agreement was reached that the just compensation to be paid the CB&Q for its property involved in the Offutt levee on the left bank include sufficient funds to construct a corresponding right bank levee which would protect the interest of the railroad and other right bank landowners, and that the railroad would attempt to secure the permission and cooperation of the other affected landowners, namely, the plaintiff and Herman Platt, to maintain the new right bank levee.

22. By letter of June 7,1962, the Air Force, on the authority of the Chief Staff, stated as follows:

The Chicago, Burlington & Quincy Bailroad Co. has indicated no objection to our project if the design is based on protection against less than 100-year flood. However, it is understood that the railroad company feels that if our design is based on 100-year flood and tied into tbeir embankments, additional protection to railroad interests must be provided on the right bank of Papillion Creek. The Air Force is not directly concerned with any work on the right bank. However, we recognize the merits of the railroad’s position, and would agree to payment of not to exceed $15,000 to the railroad as a “connection charge” or other appropriate fee, related to our planned work on the left bank. It is felt that this expenditure would be a proper charge against the MOP line item for flood control construction. For such payment, the railroad would permit us to abut our levee on their embankment and assume responsibility for any work required on the right bank to protect their interests.

On June 18, 1962, the District Office was instructed to proceed on this basis. This directive involved a reasonable settlement for the value of the CB&Q, land and possible claims for severance damages.

23. On June 20, 1962, M. B. Cottrell, a real estate officer in the District Office of the Corps, called upon Messrs. Kruger and Wasser, the District Manager and the Plant Superintendent, respectively, of plaintiff’s rendering plant situated on the property in suit. The Government’s proposed levee project on both banks of the creek was described. After some negotiation they agreed upon a purchase price of $280 for plaintiff’s 3.73 acres adjacent to the CB&Q right-of-way. The parties also agreed that plaintiff would grant permission to construct >a dike on its right bank property on condition that the operation of three water wells would not be interfered with. Both agreements were subject to plaintiff’s head office approval. Mr. Cottrell, at plaintiff’s request, agreed to prepare a letter for the plaintiff to execute granting permission for the construction of a right bank levee on its property, and this was done in a “To Whom it May Concern” letter. Three copies of this document, together with seven copies of an official government form “Offer To Sell Beal Property” were delivered to plaintiff’s plant on June 21, relayed to its Omaha office, executed by plaintiff’s president on June 28, and returned to the District Office. Mr. Cottrell’s report of the transaction dated July 5,1962, concludes with: “Negotiations were completed with the receipt of the executed forms.” Mr. Dale Kent, the Chief of the Beal Estate Division of the District Office of the Corps, was aware of Mr. Cottrell’s negotiations. The amount agreed upon was a fair estimate of the market value of the 3.73 acre tract.

24. The “To Whom it May Concern” document, referred to in the preceding finding, is set forth in pertinent part because it is the subject of conflicting interpretations by the parties:

June 28,1962

To Whom it May Concern:

The undersigned, in consideration of mutual protection and convenience of the parties, hereby grants the permit and license to enter upon the lands hereinafter described for the purpose of construction of a levee and flood protection system on the right bank of the Papil-lion Creek. Subject, however, to the following terms and conditions:

It is agreed and understood by all parties that as part of the consideration for this permit and right-of-entry, that the levee and flood protection system will be constructed in such a manner as to protect the existing wells and pumps of the undersigned from any damage or harm, whatsoever, and that no action will be taken to disturb the continued flow of water from all wells and pumps and throughout the period of this permit or right-of-entry.

The land affected by this permit or right-of-entry is located in Sarpy County, Nebraska and described as follows:

9]> y

NATIONAL BY-PRODUCTS, INC.

By (sgd.) B. S. Fleming

President Official Title

25. The “Offer To Sell” document referred to in finding 23 above was titled “Department of the Army” and provided that the “Vendor” “offers to sell and convey to the United States of America and its assigns” a tract of land the description of which was typed in. (See finding 14, n. 2). Included among a number of standard clauses was the following:

(11) All terms and conditions with respect to this offer are expressly contained herein and the Vendor agrees that no representative or agent of the United States has made any representation or promise with respect to this offer not expressly contained herein.

26. At the time the plaintiff executed the two documents (a) offering to sell some property to the Government and (b) granting right-of-entry for construction of a right bank levee, it was not aware that the right 'bank levee was not in the Government construction contract, and, furthermore, reasonably considered the two documents as part of the same transaction for construction of levees on the left and right banks. At the time of the negotiations with plaintiff, the preparation of the documents, the execution of the documents by plaintiff, the request for an extension of the “Offer To Sell”, and the eventual acceptance of the offer, the government agents reasonably considered the documents as separate, relating to different projects, one to be constructed by the Government, the other by some other party. At no time did they consider that there was any contractual obligation on the part of the Government to construct a right-bank levee to protect the plaintiff.

Further, the Government neither knew nor had reason to know of the contrary understanding attached to the transaction by the plaintiff.

27. Concerning the crucial question of what representations were actually made to plaintiff’s agents by the Corps’ representative, no party was able to testify as to the actual words spoken. Plaintiff’s representatives (Kruger and Was-ser) testified that they believed that the United States itself would construct the right-bank levee. The Corps’ representative (Cottrell) testified that he had told plaintiff’s agents that “the only construction that we could seriously entertain under our military contract would be that of the left bank” and that “since this was a military project we could not construct the right bank, but that we were morally inclined to tbink that it was necessary, that the chances of that dike be [sic] breached or topped by a flood as a result of our construction on the north side [left bank] was certainly of interest to us and concern, but that the Government and their contractor could not perform this work on the right bank.” Mr. Cottrell also testified that he “inquired about the possibility of their company granting someone the right to construct this right bank levee.” He added that he felt sure “that the Government was trying to find a way and means by which this right bank could be constructed.”

From the testimony, Mr. Cottrell’s report of the negotiations, the surrounding circumstances, and later events, we conclude that Mr. Cottrell did not specifically state that someone else was to build the right-bank levee, nor did he state that the Government would build it, or see that it was built. In all probability he “advised that” a right-bank levee was to be built — a representation of the defendant’s current belief, opinion or prediction, not in the form of a commitment or undertaking or guarantee.

28. On June 27,1962, a meeting was held of the principal real estate and engineering officers of the District Office and of the Missouri Niver Division of the Corps of Engineers to determine the time for advertising of construction bids for the project. The project was stalled because the Government had been unable to secure the cooperation of Herman Platt, who refused to grant permission for the construction of the right bank levee until he could reach an agreement with the Government on the value of his land to be used on the left bank for the Offutt levee. Acquisition of Platt’s land could be accomplished by condemnation of the left bank lands but not of the right bank lands because the directive issued by the Air Force was limited to the left bank. The CB&Q also refused to condemn the right-bank land, fearing liability for the whole right-bank project. A report of the meeting stated:

Construction plans call for right bank dike construction, on an informal basis, for the protection of the Chicago, Burlington and Quincy Railroad right-of-way, the National By-Products, Inc., rendering plant, and a five acre tract owned by Mr. Platt. Without right bank dyke construction, the cooperation of the C.B. & Q. Railroad and the National By-Products, Inc., will be lost and the possibility of future damage claims, by these owners, arises.

It was concluded to request plaintiff’s officials to contact Platt to seek bis cooperation, pointing out tbe mutual benefits to be gained by tbe construction of a right-bank levee. Cot-trell did ask Wasser for assistance and represented that “the entire project, for both banks was dependent on Mr. Platt’s donation.” Mr. Wasser twice attempted to convince Platt to cooperate, unsuccessfully.

29. Construction plans at this stage called for a right bank levee of about 2,200 feet running from the CB&Q bridge upstream to the MoPac embankment near the county bridge, as compared to a left bank Offutt levee of some 8,814 feet running from the CB&Q bridge upstream to a point beyond United States Highway 73-75 Bridge. The plans for the right bank levee, covering a highly vulnerable reach of the creek, were marked N.I.C., meaning “not in contract”.

30. On July 20, 1962, the Division Office proposed to the Chief of Engineers that the work on the right bank be done by the Air Force and stated that there was a legal basis therefor recognized by the Air Force. Since the CB&Q railroad was unable to do the right bank work because of inability to secure the cooperation of Mr. Platt, the Division Office requested the Chief of Engineers to obtain the approval of the Air Force for the Corps of Engineers to do the right bank work by including it in the contract for the left bank.

31. (a) On September 18,1962, the Air Force directed the Chief of Engineers to proceed with -the acquisition of the real estate on the left bank of Papillion Creek, including necessary licenses from the CB&Q, which were to be obtained by condemnation if not otherwise acquirable. The reason for this direction by the Air Force, limiting the prospective project to the left bank, was its view that there not only was no clear legal obligation on its part to provide a right bank levee to protect the railroad, but also that the right bank work was a civil work which could not be legally accomplished as part of the military construction program 'as presented to and authorized by Congress. This letter of September 18, 1962, was the final directive from the Air Force to the Corps of Engineers to proceed with the construction of the left bank levee without contemporaneous construction of a right bank levee. This was also the culmination of the last request by the Corps to have the Air Force directives expanded to include right-bank construction. Despite its numerous requests for expansion, the Corps at all times recognized the limitation of its authority to the left-bank project.

(b) Public Law 87-57 of June 27, 1961, 75 Stat. 96, 106, which was enacted “To authorize certain construction at military installations, and for other purposes”, earmarked $541,000 for real estate acquisitions, utility installations, and ground improvements involved in the construction of the Offutt levee. Because of this authorization as a military project, it was not included in the civil engineering report sent by the Army to the Congress in July 1962 concerning the proposed development of flood control features on Papillion Creek as a civil works project, but was referred to in the report as a military project which had recently been approved for construction. It was designed to tie in with and help carry out — when built — the overall flood control plan for Papillion Creek. The Air Force purposely paid the CB&Q railroad for its property an amount sufficient to improve the right bank levee, considering this to be justifiable compensation in the nature of severance damages to the railroad’s property taken.

3:2. On October 11, 1962, by which time plaintiff’s offer to sell its left bank property had expired, the District Office of the Corps requested plaintiff to extend its offer to sell for 90 days, and the plaintiff granted an extension to December 31, 1962. The Corps of Engineers was still attempting to have the CB&Q undertake construction of a right bank levee at Air Force expense. On October 26, 1962, the defendant accepted plaintiff’s offer to sell its left bank property. Both at the time the plaintiff extended its offer to sell to the Government, and at the time the Government accepted the offer, the plaintiff was under the reasonable impression that a right bank levee was to be built, and did not know that the right bank levee was not in the Government contract.

33. On October 12, 1962, the District Office of the Corps requested the CB&Q to consider the plan for the railroad to accept $16,500 in excess of the value of its easement rights for the purpose of undertaking work on the right bank levee to give protection to the CB&Q and the other right bank owners. Although a right-of-entry was forwarded to CB&Q for its execution and return, no definite agreement was ever forwarded to the railroad to implement the proposal.

34. Since negotiations with the CB&Q for purchase of its left bank property by the Government and construction of a right bank levee were never consummated, the defendant instituted condemnation proceedings against the CB&Q on October 25, 1962, filed a declaration of taking which vested an easement estate in the Government in 7.41 acres of the railroad right-of-way, and deposited $16,500 in the court registry as estimated compensation. The condemnation proceedings were still pending at the time of trial of the instant case. In 1965 CB&Q contributed $12,000 to Sarpy County for construction of a right bank levee which was constructed in 1965, after the flooding of plaintiff’s property complained of in this litigation.

35. On October 29, 1962, the District Office of the Corps made demand upon the plaintiff for immediate use and occupancy of the latter’s left bank property, and this was granted by plaintiff by return mail. At this time the plaintiff thought that a right bank levee was going to be constructed.

36. Plaintiff’s first information that the Government would not construct a right bank levee was obtained in December 1962 from the CB&Q, but plaintiff believed that other arrangements would be made as soon as certain technical problems were cleared up. When the plaintiff, at defendant’s request, delivered a warranty deed to the District Office for its left bank property on February 11,1963, it still expected the right bank levee to be constructed through some arrangement as soon as technical problems had been solved.

37. The Offutt levee on the left bank of Papillion Creek was begun in the winter of 1962-63 and completed and turned over to the Air Force by the Corps of Engineers in the fall of 1963. It was constructed and designed to contain a water flow of 28,500 c.f.s., plus an additional freeboard.

38. In early 1963 there was another meeting between Cot-trell and Kruger at plaintiff’s plant. Neither party recalls who suggested the meeting. At this conference, Cottrell specifically explained that a regulation made it impossible for the expenditure of government funds directly on the right bank, but that the Burlington Railroad was being “overpaid” in an amount sufficient to build the dike on the right bank. Both prior to and after this meeting, Mr. Herbert Harris, treasurer of plaintiff company, whose office was in Omaha, periodically questioned Kruger as to the cause of the inaction in building the right-bank levee. Kruger’s explanations of temporary complications and technicalities satisfied him. Though the right-bank levee was not constructed in 'accordance with plaintiff’s conception of the Government’s contractual obligations, and despite earlier indications casting doubt on its own view, By-Products never, from the record, made any complaints to the Corps of Engineers, nor demanded performance.

39. Severe local rains occurred during the nights of May 25-26, 1964, accumulating over four inches of precipitation within a six-hour period within the Big and Little Papillion Creek watersheds. Little Papillion Creek generally stayed within its banks with minor flooding reported immediately downstream from Peony Park. Minor flooding in rural areas was reported on West Branch of Papillion Creek downstream from the town of Papillion. Moderate overflows occurred along Papillion Creek from the vicinity of Douglas-Sarpy County line to Fort Crook causing some flooding in the farmed areas adjacent to the stream, particularly on the right bank. Flooding occurred to the golf course near the Capehart housing area at Offutt Air Force Base. The flood stage of Papillion Creek at the Fort Crook gauge is 19 feet. The water in Papillion Creek at Fort Crook reached the stage of 25.8 feet. The flood carried a flow of about 18,300 c.f.s.

40. The May 1964 flood was characterized by one of the witnesses as a “trash flood” because it washed trash and debris off the surface of the watershed and carried it downstream, where a quantity of it lodged at the MoPac bridge over Papillion Creek near the United States Highway 73-75 Bridge over the creek. The newly constructed levee on the left bank of Papillion Creek protecting Offutt Field withstood the pressure of the river and held against the flood stage, including the reach where the old left bank levee had breached in the course of previous floods. The water overflowed the low flat berm which lay between the creek and the new Offutt levee on the left bank and washed some heavy vegetation from the berm which washed downstream to the CB&Q bridge, but neither this accumulation of trash nor the CB&Q bridge significantly retarded the flow of floodwaters in the swollen stream. At a point 100-200 feet upstream from the CB&Q bridge the floodwaters in the creek topped the old right bank levee and washed out a section of the levee top, passing south over, across and through plaintiff’s property, causing substantial damage to its plant, buildings, equipment and inventory. The water also damaged the CB&Q right-of-way south of the creek and bordering plaintiff’s property on the east.

41. The channel of Papillion Creek downstream from the CB&Q bridge was sinuous and constricted not only by the old farm levees lining each bank but also by the accumulation of debris, tree stumps and snags in the channel which impeded its flow to the Missouri River. This would have had some unmeasured tendency to increase the height of the flood stage of the creek above the CB&Q bridge, offset to a large extent by breaches in the old levees below the CB&Q bridge which relieved the backwater effect.

42. During the afternoon of June 16,1964, a line of heavy thunderstorms moved southeast toward Omaha driven by a wind of 20 miles per hour. The heavy thunderstorm cell stalled just west and southwest of Omaha between the hours of 6 and 9 p.m. Flash flooding resulted from the rainfall which occurred over the basin. One storm center occurred near Bennington. A second center occurred between the towns of Millard and Papillion, Nebraska. In excess of eight inches of rainfall occurred at each storm center. The weather bureau observer reported in excess of 8.5 inches of rain fell with eight inches falling in 40 minutes. The standard rainfall pattern for the location is about 5.45 inches in one hour over a ten-square mile area.

43. The most severe flooding occurred on Papillion Creek below the mouth of West Branch and on Big Papillion Creek, West Branch of Papillion and Hell Creek. These reaches sustained more than 93 percent of the total damages which occurred in the basin. The flood began generally on the central and upper sections of the basin at about 7 p.m., and in the lower section near Port Crook at about 12 p.m., on June 16,1964. The flooding continued until about 6 p.m., on June 17, 1964. The Fort Crook gauge registered 29.44 feet which is 10 feet above flood stage. The discharge was estimated at 37,000 c.f.s., at 5:15 a.m., on June 17, 1964. The flood was in excess of an anticipated one-percent or 100-year flood. Seven people lost their lives in the flood and physical damage was extremely severe.

44. Flooding was confined to the rural areas and was extensive due to many breaks in levees north of La Platte and near Fort Crook. Flooding was extensive in the Capehart housing area and overtopped the levees at that point and washed down west of United States 73-75, crossing into the north half of Section 14, filling the fields belonging to Mr. Prucka and Herman Platt behind the MoPac tracks. The new Offutt levee on the left bank protecting Offutt at the location of the MoPac bridge crossing the Papillion near United States Highway 73-75 withstood the force of the flood. The floodwaters came to within a few inches of the top of the left bank levee at that location. The floodwaters washed through the hole in the right bank levee on plaintiff’s property which had been opened by the May flood and the waters again washed south across plaintiff’s property between the MoPac and the CB&Q tracks, but caused less damage to plaintiff than the May flood since its plant was not yet fully restored to operation and its inventories were reduced. South of the CB&Q bridge the waters flooded the area generally and washed out many levees.

45. The low, flat berm provided between the newly constructed Offutt levee on the left bank and the natural creek bank was littered with debris which had washed downstream in the May flood. There was a growth of wheat on the berm which had been planted on Herman Platt’s farm and grass and some willows which were washed over and laid flat by the force of the floodwaters. The vegetation growth on the berm was reasonably recent in origin since the berm area had been constructed in a period of less than one year before the flooding. The fact that the wheat and young willows, etc., were laid flat to the ground demonstrates that this growth did not interfere substantially with the flow of the floodwaters or contribute to the flood damage. A backwater computation made after the June flood demonstrated conclusively that the setback design of the new Offutt levee actually accommodated a flow in excess of 28,500 c.f.s., and that the growth and debris on the berm did not substantially obstruct the flow capacity in the flood channel.

46. If a right bank levee of equal height and strength to the new Offutt levee on the left bank of Papillion Creek and as designed and recommended by the Corps of Engineers had been in place at the time of the May 1964 flood, it is reasonable to conclude that such levee would not have been breached or overtopped and the plaintiff would not at that time have sustained the damage to its property that it did sustain. However, given the same hypothesis, the June 1964 flood would have overtopped the levees on both sides of the creek and would have flooded plaintiff’s property.

47. Had the new Offutt levee not been in position at the time of the May 1964 flood, it is reasonable to conclude that on that occasion the right bank levee protecting plaintiff’s property would not have been breached or overtopped and that plaintiff’s property would not have been flooded. Instead, the flood would have breached the old left bank levee at one or more places upstream from plaintiff’s property and would thereby have so reduced the level and pressures of floodwaters against the levee bordering plaintiff’s property as to have left it unbreached. However, both sides of the creek would have been flooded by the June flood if the Offutt levee had not been constructed. These conclusions are based on a consideration of conflicting expert testimony, the record of breaches in the left bank in the course of previous floods and corresponding freedom of the right bank levee from breaches, the flood levels in May 1964 compared with previous flood levels, the estimated capacity of the creek in the relevant reach prior to the construction of the new Offutt levee, the direction of the natural floodplain of the creek, as well as taking into consideration the poor condition of the creek channel downstream from the CB&Q bridge as described in finding 41.

48. There is no showing by the plaintiff that the flooding experienced by National By-Products in May and June 1964 will inevitably recur. The evidence rather shows that the flooding was the result of a great many physical factors, including the severe rains, the weakness of plaintiff’s own levee, the constriction of the creek bed downstream, and the failure of enough other levees to breach to relieve the pressure on plaintiff’s dike. Due to projects undertaken since, it is now relatively certain that such flooding will not recur in the future.

49. On August 14, 1964, a meeting was called by Mr. Ackerman, Chief of the Engineering Division of the Division Office of the Corps. It was held at plaintiff’s plant and attended by representatives of plaintiff, Sarpy County, the CB&Q and MoPac railroads, local landowners, and about eight representatives of the Corps of Engineers. The meeting was called to evolve a plan for both temporary and future protection of the right bank of Papillion Creek in the vicinity of plaintiff’s property. Sarpy County agreed to sponsor the project for construction and maintenance of a right bank levee. The CB&Q agreed to contribute $12,000 towards the levee work. Mr. Platt agreed to furnish a right-of-way so that the levee could be constructed across his land connecting plaintiff’s levee with the MoPac embankment. The levee would not have been effective against flooding in the absence of the continuation of the levee in front of Mr. Platt’s right bank property. All affected landowners on the right bank of the creek, including Messrs. Platt and Prucka and the plaintiff, agreed to furnish the necessary rights-of-way for the construction of the proposed levee.

50. The right bank levee was constructed substantially in accordance with the plans originally prepared by the Corps of Engineers.

CONCLUSION OK LAW

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

The court is beholden to Trial Commissioner C. Murray Bernhardt for his opinion which reaches the same conclusion but on other grounds.

Concern at this time was focused on a portion of tie creek above tbe Highway 73-75 bridge well upstream of plaintiff’s property.

The government negotiator suggested that Platt’s consent to the right-bank work be obtained before discussion of payment for his left-bank interests began.

The evidence indicates that a portion of the tract acquired from plaintiff actually lies on the right bank, and that improvements were made to the CB&Q bridge on the right bank in conjunction with the left-bank construction. See finding 14, n. 2. Although the issues of the Government’s authority to purchase land and make improvements to private properly on the right bank are central to this ease, neither party excepts to the trial commissioner’s finding that the land purchased from plaintiff lay entirely on the left bank, or otherwise relies on the true facts. We must assume, therefore, that the activities on the right bank were merely incidental and integral to the left-bank construction, and should be treated as left-bank activities.

Restatement (Second) op Contracts § 2 (Tent. Draft No. 1, 1964).

Restatement (Second) op Contracts § 2, comments e and f (Tent. Draft No. 1, 1964).

Chapters 9 and 17 have not yet been revised by tbe American Law Institute.

While the December 27, 1961, letter, supra, is wholly typewritten (as was the “To Whom it May Concern” letter) it was addressed directly to the District Engineer, and referred to the Government as the party to do the levee repair. v .,

In proper circumstances some of these deficiences could be remedied by implying “reasonable” terms and would therefore not affect the validity of the whole contract. However, the lack of any terms which would ordinarily be present in such a contract is persuasive that this was not a contract to construct a levee or to assure that one would be built.

Transcript at 13,15, 34 (Kruger) ; 50-51, 65 (Wasser).

Transcript at 123-24.

Transcript at 137.

Transcript at 138-39.

Transcript at 34, 65.

The trial commissioner made no findings on the credibility of the opposing testimony, nor did he resolve the conflict since he assumed, for the purposes of his discussion, that a contract was made, but ruled that it was subject to the condition precedent that Herman Platt agree to allow entry onto his right-bank property for construction of the levee provided in the informal agreement. This was not a point raised by the parties.

Transcript at 15.

Defendant’s Exhibit No. 33.

Defendant’s Exhibit No. 19. Colonel Palmer felt, however, that a “difficult question of law” was involved.

33 U.S.C. § 696 (1964) reads In pertinent part:

“It Is declared to be tbe policy of Congress that owners * * * whose property is acquired for public works projects of the united States of America shall be paid a just and reasonable consideration therefor. In order to facilitate the acquisition of land and interests therein by negotiation with property owners, to avoid litigation and to relieve congestion in the courts, the Secretary of the Army * * * is authorized in any negotiation for the purchase of such property to pay a purchase price which will take into consideration the policy set forth in this section.”

Although this section applies specifically to public works projects and this was a military project, the spirit of the section, and perhaps its letter, is applicable to the acquisition of land for this purpose so closely related to public works projects.

In fact, plaintiff’s treasurer (at its home office in Omaha) kept asking Mr. Kruger (at the plant) what was happening and why the company wasn’t getting anything.

Holdings in this area result from factual considerations in each case, and none can serve as authoritative precedents in the traditional sense. For a recognition of the general principle, see Cabaud v. Federal Ins. Co., 37 F. 2d 23 (C.A. 2 1930) ; Peters v. Bower, 63 So. 2d 629 (Fla. 1953) ; Harper v. Kennedy, 15 Ill. 2d 46, 153 N.E. 2d 801, 805 (1958) ; Phoenix Spring Beverage Co. v. Harvard Brewing Co., 312 Mass. 501, 45 N.E. 2d 473 (1942) ; Anderson v. Backlund, 159 Minn. 423, 199 N.W. 90 (1924) ; Broad Street Nat’l Bank v. Collier, 112 N.J.L. 41, 169 A. 552 (Sup. Ct. 1933), aff’d, 113 N.J.L. 303, 174 A. 900 (Ct. Err. & App. 1934) ; Esslinger’s, Inc. v. Alachnowicz, 68 N.J. Super. 339, 172 A. 2d 433 (Super. Ct. App. Div. 1961) ; 1 Corbin on Contracts § 15 (1963). But see Barcroft Woods, Inc. v. Francis, 201 Va. 405, 111 S.E. 2d 512 (1959) (written clause assuring that third party would build lake and beach fronting property, with additional compensation paid therefor, demand made for performance and performance assured by defendant).

Another contention is that the $230 agreed upon at the June 20th meeting for the left-bank tract was not adequate compensation for 3.73 acres. If this were so, perhaps the Government would have had reason to know that plaintiff felt there was additional consideration involved. However, there is little in the record to substantiate plaintiff’s argument. The appraised value of plaintiff’s land was $200 (Plaintiff’s Exhibit No. 39) ; there was dickering as to the final amount; the CB&Q considered that the value of the interest in its 11 acres needed for the project (without regard to the severance damages) was $100. (Plaintiff’s Exhibit No. 45.) That Herman Platt felt his land was worth $290 per acre is not persuasive, in light of his general credibility as a witness. Further, it is inconceivable that plaintiff’s land was worth $12,230, which would include the contemplated levee cost.

Restatement (second) oe Contracts §21, comment 6 (Tent. Draft No. 1, 1964).

Plaintiff contends that the Government is estopped to deny the existence of a contract because it has accepted benefits. This argument is based on the erroneous postulate that whenever a person benefits it is necessarily the result of some contract. Moreover, defendant’s only benefit here arose from the “Offer To Sell”, the terms of which are not in dispute and which, as we have decided, was not linked to any undertaking to build a right-bank dike.

Because of our conclusion that there was no contract to build a right-bank levee, we do not reach defendant’s argument that its agents had no authority to enter into such a contract, nor plaintiff’s reply that the government is estopped to make such a denial. As indicated above, we do rely on consistent recognition by the Corps of its limited authority as evidence that it did not exceed those recognized limits in this instance.

The Government relies upon decisions involving federal levee and dam construction projects on navigable streams, designed to increase their navigability and provide flood protection. In Jackson v. United States, supra, 230 U.S. 1; Hughes v. United States, supra, 230 U.S. 24; Cubbins v. Mississippi River Comm’n, supra, 241 U.S. 351; United States v. Sponenbarger, supra, 308 U.S. 256; and Kirch v. United States, supra, 91 Ct. Cl. 196, landowners made claims similar to those here — that the projects raised the general level of water in the Mississippi River, subjecting their lands to greater floods, amounting to a taking without just compensation. The Supreme Court and this court ruled that there was no taking, relying, in substantial part, on the rule that each riparian owner on a navigable stream has the right to protect his own lands from floodwaters, and that no owner has a duty to provide concurrent protection to the property of his neighbor. However, Papillion Creek, by stipulation, is a non-navigable stream, and the law of Nebraska appears to be the exact opposite of the Supreme Court’s formulation (“A riparian owner * * * may not dam or dike against floodwaters to the injury of adjacent owners of land”, Wiese v. Klassen, 177 Neb. 496, 129 N.W. 2d 527, 530 (1964) ; see also Hofeldt v. Elkhorn Valley Drainage Dist., 115 Neb. 539, 213 N.W. 832 (1927)). Because of these differences, we put the cited cases aside, without deciding whether the differences are significant.

Before the trial commissioner plaintiff appears to have argued that the Government’s liability for a taking should be governed solely by Nebraska law. This contention was not briefed or argued before the court and we do not consider it.

In a case arising from the proposed construction of a portion of a Mississippi Elver flood control project, Mr. Justice Brandéis said that, even assuming that “a plan of flood control -which involves an intentional, additional, occasional flooding of complainant’s land constitutes a taking of it”, plaintiff was not entitled to an injunction because he had an adequate remedy at law. Hurley v. Kincaid., 286 U.S. 95, 103 (1932). This arguendo statement falls far short of an authoritative departure from the requirements of the Cress case, supra, 243 U.S. at 328.

There is some confusion in the documentary record as to whether levee unit R-616 of the overall flood control plan would provide a levee for the left bank only or for both banks of Papillion Creek. The latter view is supported by Plaintiff’s Exhibit 1, at p. 2, but the reference may possibly contemplate levee unit R-616 as augmented by levee unit R-613, which latter is not mentioned in the exhibit.

The trial commissioner’s finding, to which no exception was taken, was that the whole o£ the 3.73 acre tract acquired from plaintiff was situated on the left bank of Papillion Creek. The “Offer To Sell”, Plaintiff’s Exhibit No. 42, and the Warranty Deed, Plaintiff’s Exhibit No. 57, both clearly indicate that property on the right bank was also included. See also Plaintiff’s Exhibit No. 40, Defendant’s Exhibit No. 30 and testimony of M. B. Cottrell, Transcript at 119-21. Further, there is uncontradicted evidence that work was actually performed on the right bank in connection with the construction of the left-bank Offutt levee. Cottrell testified that 200 linear feet of riprap was applied to the right-bank portions of the CB&Q bridge embankment. Transcript at 119. See also Plaintiff’s Exhibit No. 65, showing this riprap construction. Although the issue of the Corps’ authority to purchase and improve land on the right bank is hotly contested, neither party attaches any significance to the facts recited in this finding, and it is therefore found that this activity was incidental or integral to the left-bank construction and treated as part of that construction.