Grover C. Goode, Attorney at Law, for claimant.
Nancy J. Aliff, Attorney at Law, for respondent.


Both claimants are Went Virginia corporations, of Welch, in McDowell
County, and have a
common ownership. Yeager, Incorporated owns certain real estate there
which it leases to
Yeager Ford Sales, Inc., a Ford dealership. Except for a sales building
on the other side of
McDowell County Route 7, the real estate in situated between the highway
and the Tug River.
over many years, occasional hard rains had caused a flooding of the
highway,, about 8 to 10
times each year. The storm sever drain was inadequate. The only
available bypass street,
Central Avenue, is too narrow for two-way traffic. on these flooding
occasions, authorities
would contact Yeager Ford Sales, Inc. which would favor the public by
moving care from its lot,
allowing vehicles to then use its lot an a bypass route. After such a
hard rain and flooding in June
of 1981, renewed complaints resulted in an effort of the respondent to
solve the problem. Emily
W. Yeager, an officer of both corporations and wife of the principal
owner, Earl Yeager, headed
up the effort, addressing requests to members of the legislature and
respondent's representatives
in the area. It was agreed that a drain would be installed between the
highway and the Tug
River, passing beneath two buildings on the Yeager, Incorporated
property, referred to as the
parts building and the annex. Except for surveying the elevations and
route,, and determining that
a 24-inch drain pipe would be installed, there appears to have been
little in the way of planning
the construction. There were no formal plans.

Before the work was begun, a right of way instrument was prepared by
respondent for
execution by Earl Yeager as president of Yeager, Incorporated. This
instrument contained
language to the affect that the consideration for the right of way was
also consideration for a
release ". . . from any and all damages that have been occasioned or
that may be occasioned to
the residue of the property . . . by

reason of the construction to be performed." After Yeager's refusal to
sign, respondent added
to the instrument:

'It in agreed that after the pipe in installed the property will be
restored to as near original
condition as possible.'

The instrument was then signed and respondent, with its own men,
proceeded to install the
24-inch drain during August of 1981.

Respondent apparently had expected labor help from the City of Welch
for hand digging the
trench, for the drain, and the buildings. When such labor help was not
provided, respondent
used mechanical equipment, a borrowed Bobcat loader. Instead of a narrow
trench, the
excavation in places was about twelve feet in width and was some six to
eight feet in depth and
was also along the wall of an adjacent building known an the truck
garage. From the evidence,
the Court is satisfied that the respondent road portions of building
footers and installed wood
cribbing as a permanent replacement for foundation wall support; that
respondent cut through the
cement floor of the annex, for access underneath, and did not properly
backfill nor replace the
floor; that respondent's work resulted in now cracks and enlargement of
cracks existing prior to
construction, and other damages to the buildings and rendered portions
of the buildings unsafe or
unfit for use. Respondent denied any obligation to do anything further,
after completing
construction of the drain, except respondent did replace some fencing
and did supply two
truckloads of backfill material for filling the hole in the floor of the

It is respondent's position that the claimants were aware that some
building damage might
ultimately result from construction of the drain; that Earl Yeager's
original attitude had been that
getting the now drain in was so necessary that he did not care about
building damage.
Respondent mad* no preconstruction investigation of the soil conditions
beneath the buildings
and later found the soil to be sand containing a lot of water. As one of
respondent's witnesses
stated, "Hindsight in better than foresight." Thomas 0. Henderson, Jr.,
then respondent's county
supervisor for me 11 County, did not know of the added provision in the
right of way
agreement, the provision to the effect that the property was to be
restored to an near original
condition as possible. He supervised the construction under direction of
William R. Bennett,
respondent's engineer.

Bennett did know of the added provision and was present daily during
construction, but he,
too, thought that Earl Yeager did not care if there was some settlement
of the buildings. No
stated that Yeager had given approval to cutting the hole in the annex
floor and that he, Yeager, "
. . . would see that it got put back in." He conceded that the annex
building was not restored as
nearly as possible to its original condition. He contended that use of
the wood cribbing
constituted good engineering practice.

There was disagreement, between claimants' and respondent's witnesses,
whether treated
wood had been used. Claimants' witnesses contended that untreated wood
was used.
Respondent's witnesses assumed that treated wood was used for the reason
that it purchases
only treated lumber.

Hearing of this case was bifurcated upon the issues of liability and
damages. Upon the issue of
liability, the Court finds that the written right of way agreed to in
the only contract between the
parties; that the claimants' interpretation of the contract in correct,
that it was the obligation of
the respondent, upon accepting the right of way instrument it had
prepared and signed and upon
then constructing the drain, to restore the property, including the
buildings, to as near original
(preconstruction) condition as possible,

The Clerk of the Court is directed to sat this case for further
hearing, upon the issue of