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West Virginia Court of Claims

Volume Number: 30
Category(s): STREETS AND HIGHWAYS
Opinion Issued November 26, 2013
JOHN PETER RICHARDSON AND PATRICIA A. RICHARDSON
VS.
DIVISION OF HIGHWAYS
(13-0550)
     C. William Davis, Attorney at Law, for Claimants.
     Michael J. Folio, Attorney at Law, for Respondent.
     PER CURIAM:
      This claim was submitted to the Court for decision upon a Stipulation entered into by Claimants and Respondent wherein certain facts and circumstances of the claim were agreed to as follows:
      1. Claimants are the fee-simple owners of a tract of real estate in Bluefield, Mercer County, West Virginia, that extends from West Cumberland Road on the North to United States Route 460 on the South and that is located between Fincastle Lane on the West and Leandra Lane on the East (the “Claimants’ Real Estate”).
      2. Respondent is the fee-simple owner of a strip of real estate in Bluefield, Mercer County, West Virginia, that extends from United States Route 460 on the South through the Claimants’ Real estate to the North and West (the “Respondent’s Real Estate”).
      3. At all times relevant to the claim herein, Claimants have occupied the Claimants’ Real Estate as their residence.
      4. Beginning on or about June 24, 1975, the Respondent constructed a rock lined ditch on the surface of the Respondent’s Real Estate from the right-of-way of United States Route 460 to a sinkhole located on real estate to the West of the Claimants’ Real Estate.
      5. Since June 24, 1975, the Respondent gathered surface water from the right-of-way of United State Route 460 and directed that water through the Respondent’s Real Estate in the ditch.
      6. Since June 24, 1975, the surface water in the ditch eroded the ditch.
      7. Since April or May of 2008, the surface water in the ditch caused multiple sinkholes to form on the Respondent’s Real Estate (collectively, the “Respondent’s sinkhole”).
      8. Since the Respondent’s sinkhole formed, the Respondent continued to inject all of the surface water from the ditch into the Respondent’s sinkhole.
      9. As a direct and proximate result of the acts of the Respondent, the Respondent’s sinkhole eroded so that it now extends onto the Claimants’ Real Estate.
      10. As a direct and proximate result of the acts of the Respondent, Claimants suffered injuries that include, but are not limited to, extreme emotional distress, annoyance and incovenience, the loss of lateral support for a part of the Claimants’ Real Estate, the erosion of a part of the Claimants’ Real Estate, the loss of use and enjoyment of a part of the Claimants’ Real Estate, and a decrease in the value of the Claimants’ Real Estate.
      11. Claimants filed a civil action against the Respondent on September 23, 2011, in the Circuit Court of Mercer County, West Virginia, that is designated as Civil Action 11-C-535-WS (the “First Civil Action”). That action requested that the court issue preliminary and permanent injunctions to enjoin the Respondent from injecting any surface water from the ditch into the Respondent’s sinkhole, that the court enter an order that directs the Respondent to abate the nuisance created by the Respondent’s sinkhole, to vacate the Claimants’ Real Estate to provide lateral support for the Claimants’ Real Estate, that the court enjoin the Respondent from trespassing on the Claimants’ Real Estate, and that the court award Claimants a judgement for the damages caused by the loss of lateral support of the Claimants’ Real Estate and for damages caused by Respondent’s negligent, wanton, willful and unlawful acts.
      12. The Respondent filed a motion to dismiss the First Civil Action that asserted that the court lacked subject matter jurisdiction over the claims pursuant to Rule 12(b)(1) of the West Virginia Rules of Civil Procedure and Article VI, Section 35, of the West Virginia Constitution.
      13. Claimants filed a second civil action against the Respondent on January 5, 2012, in the Circuit Court of Mercer County, West Virginia, that is designated as Civil Action 12-C-3-OA (the “Second Civil Action”). The “Second Civil Action” requests the same relief as the First Civil Action. The Second Civil Action was consolidated with and into the First Civil Action by an Order entered on February 8, 2012, by the circuit court.
      14. On or about July 16, 2013, the Respondent proposed that Claimants execute an option agreement for the transfer of a 1.939 acre tract out of the Claimants’ Real Estate to the Respondent for $25,000.00 in lieu of condemnation (the “Option Agreement”). Claimants refused to execute that agreement based upon potential evidence that the actual value of the 1.939 acre tract with the improvements thereon and the resulting damage to the residue of the Claimants’ Real Estate was substantially more than $25,0000.00.
      15. Claimants filed a notice of claim against the Respondent in this matter that asserts that as a direct and proximate result of the acts of the Respondent, Claimants suffered injuries that include, but are not limited to, extreme emotional distress, annoyance and inconvenience, the loss of lateral support for part of the Claimants’ Real Estate, the erosion of a part of the Claimants’ Real Estate, the loss of use and enjoyment of a part of the Claimants’ Real Estate, and a decrease in the value of the Claimants’ Real Estate.
      16. The parties recognize that this claim raises issues for resolution by this Court. However, given the uncertainty of the outcome of any trial, the parties agree that it is in their best interests, and in the interests of judicial economy, to resolve this claim and the issues raised in the First Civil Action and the Second Civil Action.
      17. The amount of $160,000.00 is fair and reasonable additional compensation to Claimants for the transfer by Claimants of the 1.939 acre tract to the Respondent inclusive of relocation costs, moving expenses, and attorney’s fees associated with the Option Agreement and the building and contents thereon, if any.
      18. The Respondent has the moral obligation to pay One Hundred Sixty Thousand Dollars ($160,000.00) to Claimants.
      19. Claimants shall execute the Option Agreement.
      20. The State shall file a Form 1099-S in connection with such payment.
      21. The parties agree that such payment shall not be in settlement of any other claim or future claim including, but not limited to, any future annoyance, any future loss of lateral support for the residue of the Claimants’ Real Estate, any future erosion of the residue of the Claimants’ Real Estate, any future loss of use and enjoyment of the residue of the Claimants’ Real Estate, and any future decrease in the value of the residue of the Claimants’ Real Estate.
      The Court has reviewed the facts of this claim and finds that Respondent was negligent and that the negligence of Respondent was the proximate cause of the damages sustained to Claimants’ property; and that the amount of damages agreed to by the parties is fair and reasonable. Thus, Claimants may make a recovery for the damage. This award in no way forecloses the rights of the Claimants to seek future claims for additional damages arising out of the same circumstances, or as set forth in paragraph 21 above.
      Based on the foregoing, it is the opinion of the Court of Claims that the Claimants should be awarded the sum of $160,000.00 in this claim, and that this amount is fair and reasonable in light of the facts of this claim.
      Award of $160,000.00.
     
Summary:
     


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