Henry Wood, Attorney at Law, for claimant.
Nancy J. Aliff, Attorney at Law, for respondent.

On October 7, 1980, a fence along the lower portion of claimants'
property was removed by
respondent workers pursuant to a Notice of Removal of an Obstruction
issued by respondent.
The claimants had acquired two parcels of land on the bank of Beech Fork
in Union District,
Kanawha County, from Clayton and Lona Faye Rhodes by a deed dated March
1, 1972. The
first parcel of land is the subject of this action. The Rhodes had
acquired the property on March
28, 1946, from Charleston National Bank, and the bank had acquired the
property in 1932 from
another party.

The Notice of Removal of an Obstruction directed to the claimants
stated the following:

"The obstruction is more specifically described as a fence you have
placed across State local
Service Route 5/3, Pring Drive, in Kanawha County."

The claimants allege that the fence was within the boundary line of
their property; that the
removal of the fence was within the boundary line of their property;
that eh removal of the fence
by respondent was an erroneous action, and constituted trespass. The
claimants seek $6,900.00.

Michael Mayes, a registered professional engineer, testified that he
performed a survey of the
property in October 1984. He stated that his survey did not reveal any
county road across
claimants' property. He came to this conclusion after having reviewed
the tax map, right-of-way
maps, performing field examinations, and plotting the courses.

He further testified that his survey differed in nine degrees from the
calls in the deed to the
claimants, the Charleston National Bank deed and the prior owner's deed
(Littlepage). It also
differed from the adjacent land owners' deed (the Fertigs). Mr. Mayes
testified that the four
corners upon which he based his survey were those pointed out to him by
Mrs. Dunn.

Mr. Curtis Hamilton Tilton has owned property on Pring Drive since
1951. He testified that
the county road had been used "off and on" up until 1984. He stated that
in July, 1980, the
Dunns erected the fence. He called the fence contractor, Sears and
Roebuck, to inform them
that they were putting a fence across a State road. He also notified

Lawrence E. Kitts, District Right of Way agent for District One, in the
summer of 1980,
examined the 1933 and 1936 maps of respondent, and found evidence of an
old county
roadway in the vicinity of claimants' property. He determined where the
county road was 'by the
travel way" or, as he explained, through observation. He checked the
records of the respondent
to see if this road had ever been abandoned. He did not find any
commissioners' orders
abandoning this road.

Mr. James Robert Campbell, District Engineer in District One, testified
that he issued the
obstruction notice sent to the Dunns prior to October 7, 1980. He
explained that in 1933 the
road in question was designated as 5/3. During the 1940's, the
respondent inadvertently picked
up Crystal Drive as 5/3 and left the
actual location of 5/3 adjacent to claimants' property off the
map system of the roads. In 1952, the respondent recognized its error
and again picked up Pring
Drive as 5/3, but in so doing, the respondent left off the segment
adjacent to the back of the
Dunn property toward the road then designated as Route 5. At the present
time, the road does
not have a number assigned to it. However, before issuing the
obstruction notice, Mr. Campbell
had his staff confirm that the road had not been abandoned by respondent.

The record does not establish that respondent was guilty of
trespassing. Although there is
some conflicting evidence regarding whether the county road in question
has been currently
maintained by respondent, there is sufficient evidence to support the
fact that claimants' fence
was obstructing a public road. Respondent followed the required
procedure of notice to
claimants before removing the fence. Accordingly, the claim is

Claim disallowed.