OPINION ISSUED NOVEMBER 25, 1987
OPAL M. BROWN AND JOHN BROWN
DEPARTMENT OF HIGHWAYS
Herbert H. Henderson, Attorney at Law, for claimants.
Nancy J. Aliff, Attorney at Law, for respondent.
Claimant Opal M. Brown purchased approximately 15 acres of land
house and a barn
on Turkey Camp Road, also known as Route 21/2, Wayne County, in
The property lies on both sides of Turkey Camp Road which runs
base of a hill. She
testifies that in 1979 there was a small slip on her property on
south side of the hill. Prior to
the first landslide, the claimants had not experienced any problem
flooding. She contact
respondent repeatedly, but no efforts were made by respondent to
alleviate the problem. In
1979, respondent removed the small slip. This action precipitated
second larger slip.
Claimant testified that she had signed an easement with respondent
the placement of a drain
on her bottom land. The drain was never placed. At the time of the
second slip, the water ran
across the road and into her bottom land. This area has become a
hole" when it rains now,
according to claimant Opal M. Brown.
The claimants used the acreage in question for a hay crop which
harvested about two or
three times during the summer and fall seasons. Due to the flow of
onto the property, the
hay crop does not grow as well as prior to the water problems.
allege a loss resulting
from the poor hay crop.
Randy Fry, a registered engineer and the County Surveyor of Wayne
County, testified that he
surveyed this property in September, 1982 and again in June, 1987.
Claimants' property lies on
both sides of Turkey Camp Road. The land on the northerly side of
road is higher in
elevation than the road. The land on the southerly side of the road
lower in elevation that the
elevation of the road. He assumed that the right-of-way was 30 feet
begin with, 15 feet on
each side of the center line. The center line had shifted the
right-of-way width, and the
travel portion of the highway is still within the original 30 feet.
his survey, he determined
that 4/100 of an acre of claimant's land has been affected by the
Neighbors gave accounts of the work done by respondent. There was
agreement among the
witnesses that respondent came in with equipment and scraped out
slip in 1979. One
individual testified that after the removal of the slip, respondent
not shore it up. There was no
evidence indicating that respondent cause the first slip.
There was conflicting evidence concerning the worth of claimants'
property. One neighbor
stated that bottom land in Wayne Count is generally appraised at
an acre. Another
individual stated that property in this area sells for $4,000.00 -
$5,000.00 per acre for bottom
land. A third individual testified that his 95 acres of property in
vicinity of claimants' property
was appraised for $25,000.00.
Respondent's witnesses included Charles O. Adkins, a surveyor for
respondent; Ivan B.
Browning, Assistant District Engineer in charge of maintenance with
respondent; and Gary
Robert Cooper, a geotechnical engineer with respondent.
Mr. Adkins surveyed Local Service Route 21/2 in the vicinity of
claimants' property. He
stated that the right-of-way at that location is 30 feet. He
the distance between the
edge of Turkey Camp Road through the bottom land to Turkey Camp
It is 122 1/2 feet
to the water. The travel portion of the roadway at the slide
14 feet. He stated that
there is a super elevation around the slip area. "It's basically a
little dip." He agreed that there is
presently a slip at the location, and it is impeding the flow of
and doing damage to the
Mr. Browning stated that he determined the right-of-way was 30
the location in
question. He stated that Turkey Camp Road was taken into the system
1932. He examined
the property in May, 1986, and the slide was not extending onto the
travel portion of Turkey
Mr. Cooper testified that he observed the slide which had occurred
Mrs. Brown's property
in April, 1986, and in June, 1987. The slide along Turkey Camp Road
125 feet along the side of the road.
After examining all of the evidence submitted in the claim, the
has determined that
claimants' property is inn a slide-prone area. The measures taken
respondent, in attempting to
rectify the initial slide have resulted in excess water flowing
claimants' property. The Court
is of the opinion that claimants are entitled to recover for the
use of their property based
upon the value of the land. The Court has reviewed the evidence
respect to the appraisals
rendered by the witnesses. The Court, therefore, makes an award of
$263.16 to the claimants.
Award of $263.16.