R. F. Gallagher, Attorney at Law, for claimant.
Andrew Lopez, Attorney at Law, for respondent.


Claimant, Thelma L. Jamison, is the owner of her residential property
at 960 Stewart Street,
just outside the city of Morgantown in Monongalia County. Stewart Street
is a State highway.
Her property also borders on Wilbourne Street, which runs generally
perpendicularly off
Stewart Street. On the other side of Wilbourne Street, also fronting on
Stewart Street, is the
Seaburn property. Stewart Street is downhill as it passes the Seaburn
property, then levels out
somewhat as it passes the entrance of Wilbourne Street and then the
Jamison property.
wilbourne Street is very slightly downhill as it leaves Stewart Street.
The Jamison driveway, off
Wilbourne Street to the garage at basement level and at the rear of the
house, is downhill. When
there are hard rains, surface water runs into the Jamison garage and has
caused some
deterioration and damage to the driveway, yard, and garage. Jamison
seeks $5,000.00, that
being the total of a contractor's estimate for repairs to the garage and
an appraiser's estimate of
diminution in value of the property by reason of the water damage to the

Claimant states that the water comes into her garage by reason of a
blocked culvert, in the
front of the Seaburn property, on Stewart Street; that the water is
diverted in such a manner as
to miss the culvert under the Wilbourne Street entrance and instead
flows across the corner of
the Seaburn property, down Wilbourne Street, down across her yard and
driveway, and into
her garage. It is obvious to the Court that at least some water finds
its way into her garage,
crossing Wilbourne Street from the Seaburn property, and from Wilbourne
Street itself, and
from her own yard and driveway. Ms. Jamison had tried keeping a small
ditch open, across her
driveway, to divert the water from her garage, but said such a ditch
does not last long. She had
also had a French drain installed across the opening into her garage.

The origin of the culvert, along the side of Stewart Street and in
front of the Seaburn property,
is unknown. Ms. Jamison and Ms. Mildred Charlotte Seaburn, both of whom
had occupied
their respective properties for some forty years, said that the culvert
had been there before
them. Both testified that the respondent used to respond to the requests
to clean the debris from
the inlet of the culvert. Ms. Seaburn said that the respondent, in
recent years, had not done so,
and that until he had become too ill to do it, her husband had kept it

Arthur Lee Ford, a Morgantown building contractor, had observed the
claimant's garage in
1980 and described it as having been structurally sound at that time. It
had been added to the
house about twenty-five years ago. In May of 1985, he had found
deterioration from water. He
conceded that some deterioration was from age. He submitted a proposal
in the amount of
$5,000.00 for extensive repairs, practically a rebuilding of the garage.

Inasmuch as the respondent has charge of the right of way of Stewart
Street, and in the past
has exercised control over the culvert in question and could have
removed it, the Court is of the
opinion that equity and good conscience dictate that the respondent be
found liable, in part, for
the damage to claimant's property. There being no accurate way to
determine what amount of
water entered claimant's property as a result of the culvert being
blocked, and what amount of
water entered claimant's property from other causes, by reason of
natural drainage,
the Court arbitrarily makes an award in the amount of $2,500.00.

Award of $2,500.00.