OPINION ISSUED JANUARY 15, 1986
HENRY BURGER AND GERALDINE BURGER
DEPARTMENT OF HIGHWAYS
Michael W. McGuane, Attorney at Law, for claimant.
Nancy J. Aliff, Attorney at Law, for respondent.
Claimants seek an award of $80,000.00 for the near total
their dwelling house
and real estate located at Ruth Avenue in Mozart, Marshall.County,
allege that respondent's failure to properly design and maintain
drainage system in the area
caused a landslide, which rendered the claimants' property nearly
contends that the property damage resulted from a torrential
on August 17, 1980,
from a separation and a break in a water line owned by the City of
Wheeling, which occurred
after the storm, and from the two to one hillside topography there.
Claimants sued the City of
Wheeling, owner of the water line, in the Circuit Court of Marshall
County, and received a
$50,000 settlement in about November 1983.
Except for the in open court testimony of Henry Burger, one of the
claimants, the evidence
was presented by depositions.
Claimants' property, listed for sale in May 1980 at $45,000.00, is
the downhill side of Ruth
Avenue. On the uphill side of Ruth Avenue, and generally parallel
thereto, is Carl Street which is
Route 3/1. Ruth Avenue is a Delta Road, taken into the state road
in 1967. An 18-inch
culvert carries surface water under Carl Street. An open drain
the water downhill to
where an 8-inch casing takes it under Ruth Avenue. There was no
showing when or by
whom the 8-inch casing under Ruth Avenue was installed. The
property is off to the
side from the 8-inch casing.
Claimant, Henry Burger, testified that on August 18, 1980, the
main in Ruth Avenue
broke, causing a five foot geyser of water in the street. This
the day after the rainstorm,
following which Marshall County was declared a disaster area.
began to appear in the foundation of claimants' home. Damage to the
claimants moved out on May 10, 1981.
Donnie L. Bensenhaver, Maintenance Assistant in District 6,
that he first visited
claimants' property on September 5, 1980. This visit was made in
response to complaints by
the claimants and a neighbor. Mr. Bensenhaver said that the 8-inch
casing would not handle a
heavy rain like the one which occurred on August 17, 1980. He said
the ground was such
that a saturation of the soil could cause sliding. The addition of
water from the water main
would serve to exacerbate a slide.
Several of the claimants' neighbors testified about a previous
Labor Day 1975, which
caused slide movement in the area. The neighbors also testified
Ruth Avenue drain
would periodically become clogged with debris. one neighbor, Glenna
Nelson, testified that
there is a spring which flows through her basement.
After careful consideration of all the evidence presented, the
concludes that the damage
to claimants' property resulted from a combination of factors. The
primary factor was the heavy
rainfall on August 17, 1980. This produced a super saturation of
soil, precipitating the
landslide. A separation of a water main joint and water main break
aggravated this situation as did the presence of underground
is unclear whether the
drain on Ruth Avenue was clogged prior to the rain or became
because of the rain. The
Court finds that the proximate cause of, claimants' property damage
the excessive rainfall
that occurred and water from the water main, saturating the
causing the slide; that
there was no negligence proven on the part of the respondent. In
this finding, the Court
must disallow the claim.
OPINION JANUARY 15, 1986
CARL A. DANIELS
DEPARTMENT OF HIGHWAYS
Juanita Daniels Hall, for claimant.
Andrew Lopez, Attorney at Law, for respondent.
This claim was submitted for decision after hearings on November
1985 and December
13, 1985, respectively, and upon a written stipulation. The claim
originally filed in the
names of Carl A. Daniels and Lillian R. Daniels, who had joint
of the property. After
this action was filed, Lillian R. Daniels died. The property passed
Carl A. Daniels by
right-of-survivorship. The Court amended the style of the claim to
delete Lillian R. Daniels as a
The claimant, by Juanita Daniels Hall, his attorney in fact, and
respondent, by its counsel,
Andrew Lopez, entered into a stipulation. The parties, in the
stipulation, agreed to the following
facts. A bridge was constructed by respondent over Mill Creek on
Route 219, Randolph
County, adjacent to the real property and retaining wall of the
claimant's. After the bridge was
constructed, the angle of its abutment, during periods of high
caused water to be directed
against the claimant's property and retaining wall, resulting in
The parties have stipulated
that $9,450.00 is a fair and equitable estimate of the damages
by the claimant.
In view of the foregoing, the Court makes an award in the amount
Award of $9,450.00.