OPINION ISSUED JANUARY 18, 1988
CSX TRANSPORTATION COMPANY
DEPARTMENT OF HIGHWAYS
B. Jane Myers and Randell Baisden, Attorneys at Law, for claimant.
Nancy J. Aliff, Attorney at Law, for respondent.
This claim was originally filed in a style that did not reflect
proper party claimant. The
Court, upon the claimant's motion, amended the style of the claim
reflect CSX Transportation
Company as the claimant.
CSX Transportation Company owns and operates a railroad line in
to this land is West Virginia State Route 42 which is higher in
elevation than the railroad. There is
a rock high wall immediately above the railroad tracts. In 1979 and
early 1980, there were
subsidence problems with the hillside. Slides then occurred in this
identified as "Site B." The
respondent took standard corrective measures to minimize the
During March 9 - 12,
1982, a major failure of the embankment occurred at another area
designated as "Site A."
Although both slides are on State Route 42 above the railroad right
way, "Site B" is
approximately 300 feet downgrade from "Site A."
A large portion of Route 42 collapsed and started sliding down
the railroad's property
at the time of the "Site A" failure. Respondent excavated into the
hillside to permit the road to
remain open. On March 13, 1982, respondent used a 977 Cat track
to remove some of
the material from the hillside to establish a safe, one-lane detour
around the "Site A" slip area.
When the detour was constructed, respondent maintained the ditch
the hillside so the water
that was flowing in the ditch line would not cross the detour and
into the slip area. Material
was placed on the outside edge of the shoulder on either side of
The claimants' right-of-way on the Route 421 side is 40 feet; 230
on each side of the
center line. The "Site A" slide area was inclusive of respondent's
right-of-way, but it did not
occur totally on respondent's right-of-way.
"Site B" was regularly monitored by respondent and respondent
no indication of
problems with "Site A" during a February 22, 1982 inspection. On
9, 1982, some
movement had appeared and "Site A" was reviewed by respondent. On
9, 1982, when
the area was investigated by Terry R. Kesner, there was no
in either the ditch line or
The complaint alleges it was respondent's improper conduct or
at "Site B" which
caused the slide at "Site A." The evidence fails to establish that
respondent was negligent in its
maintenance of State Route 42. The slides at "Site B" and "Site A"
two distinct slides. The
slide at "Site B" was not relevant to the slide at "Site A." The
respondent was unaware of the
proclivity of "Site A" to slip. The claim is accordingly denied.