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West Virginia Court of Claims

Volume Number: 29
Category(s): DRAINS AND SEWERS
Opinion Issued January 17, 2013
MICHAEL K. KERNS
VS.
DIVISION OF HIGHWAYS
(CC-09-0235)
     Claimant appeared pro se.
     Andrew F. Tarr, Attorney at Law, for Respondent.
     PER CURIAM:
      The Claimant, Michael K. Kerns, brought this action for property damage to his residence which he alleges occurred as a result of the Respondent’s negligent maintenance of a drainage system along Second Street and Center Street in Morgantown, Monongalia County. The Claimant’s residence is located at 56 East Second Street and he alleges that water flows down Center Street, across Second Street, and onto his property following every major rain event. The Claimant contends that the water has caused extensive damage to his home and the surrounding property. Center Street and Second Street are public roads maintained by the Respondent. Having considered all of the issues presented at a full hearing of this matter, the Court is of the opinion to deny this claim for the reasons more fully stated below.
      The Claimant testified that numerous rain events have caused damage to the Claimant’s yard and porch. The Claimant’s property is located downhill and parallel to Second Street. The Claimant testified that a third party property owner, whose property is located on the opposite side and uphill from Second Street, built an apartment building which reduced the width of the original ditch line and has since caused more water to drain off of Center Street. The Claimant alleges that the runoff from the increased watershed then flows into pipes that cannot contain that volume of water. Since this ditch is no longer large enough to hold the run-off and the natural lay of the land has been altered by third party property owners, the water now flows across Second Street and onto the Claimant’s property. The Claimant stated that his neighbors have also sustained damage to their properties. However, the Claimant contends that his property has incurred the most damage. The Claimant alleges that the Respondent is responsible for controlling the increased water flow caused by the third party apartment building.
      The Claimant has not filed suit against the third party property owner for diverting water onto his property. The Claimant asserts that the Respondent is responsible for failing to prevent the water from flowing across Second Street and onto his property. Therefore, the Claimant seeks to recover $1,500.00 for the cost of repairing the damage to his property and asks the Court to order the Respondent to alleviate the drainage issue.
      The Respondent contends that the water drainage problems were caused by a third party property owner who has re-directed the water onto the Claimant’s property, but disagrees with the Claimant’s theory that the apartment building is the culprit. Testifying as the Respondent’s expert witness was Darrin Andrew Holmes, a professional civil engineer for the Respondent. Holmes visited the Claimant’s property and reviewed aerial photographs, mapping data, and the Claimant’s photographs in reaching his opinions regarding the cause of the water flow problems onto the Claimant’s property.
      Holmes opined, to a reasonable degree of engineering certainty, that the cause of the water problems was the re-routing of the natural drainage course to a point alongside Second Street. Holmes explained that a natural drainage course is the path that run-off would take from the highest point in the watershed to the lowest point or its outlet. Holmes stated that the two natural drainage sources are located uphill from Second Street and across from the Claimant’s property. Holmes was able to deduce from all of the data that the natural watershed was interrupted by a property owner farther uphill in the natural drainage course–not by the builder of the apartment complex along Center Street.
      In addition, Holmes testified that the drainage ditches and culverts are more than adequate to manage the natural drainage before the interruption occurred. According to Holmes, the Respondent is unable to resolve the problem because it would require placing culverts under private property farther uphill in the watershed.
      This Court has held in similar claims that the Respondent has a duty to provide adequate drainage of surface water, and drainage devices must be maintained in a reasonable state of repair. Haught v. Dep’t of Highways, 13 Ct. Cl. 237 (1980). In claims of this nature, the Court will examine whether Respondent negligently failed to protect a Claimant’s property from foreseeable damage. Rogers v. Div. of Highways, 21 Ct. Cl. 97 (1996).
      Bryant v. Div. of Highways, 25 Ct. Cl. 235 (2005) involved facts similar to those in the instant case. In Bryant, water flowed onto Claimant’s property not only from State maintained roadways but also from private property located across the street from Claimant’s property on the hillside. Id. at 237. The Court held as follows:
      Claimants have failed to establish that Respondent maintained the drainage structures on Sidney Street in Raleigh County in a negligent manner. The evidence establishes that water flows onto Claimants’ property not only from the State maintained roadways but also from a private property located across the street from Claimants’ property on the hillside where new construction is ongoing. There are more sources of the water flowing on Sidney Street than just that from the road itself. Consequently, there is no evidence of negligence on the part of Respondent upon which to base an award. Id.
     
      As in Bryant, the Court finds in the instant claim that the water problems were caused by the actions of a third party property owner and not the Respondent. The evidence established that the third party property owner disturbed the natural flow of the water in this area which caused water run-off to overflow onto Second Street and onto the Claimant’s property. The Court cannot find the Respondent liable when the third party property owner created the water problems by construction on his own property which then constricted the natural flow of run-off, and altered the original lay of the land. As Mr. Holmes indicated, the Respondent cannot remedy the problem when it originates on private property. Thus, there is insufficient evidence of negligence on the part of the Respondent upon which to base an award.
      In accordance with the findings of fact and conclusions of law as stated herein, the Court is of the opinion to and does deny this claim.
      Claim disallowed.
Summary:
     


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