Clyde M. See, Jr., Attorney at Law, for claimant.
Nancy J. Aliff, Attorney at Law, for respondent.


The claimants, Alice Hope Bomboy and David Lynn Bomboy, filed this
claim in the amount of
$3,500.00 for water damage to their personal property situate at their
residence in the vicinity of
Route 90 in Bayard, Grant County. Testimony, during the hearing revealed
that the amount of
damage claimed is $4,301.00. This amount included replacement costs of a
three-year-old hot
water tank, a ten-year-old washing machine and a six-year-old freezer.
The claimants purchased
their residence on September 3, 1969. They allege that the negligence of
respondent for failure
to properly maintain a culvert on State Route 90 opposite their property
resulted in the basement
being flooded and damage to their personal property.

Claimant David Bomboy testified that, until the time of a flood in May,
1985, he experienced
no water problems on his property. He does not know the dimensions of
the Department of
Highways culvert which runs under State Route 90. He stated that a terra
cotta drainpipe was
present on the property when it was purchased. While the claimant stated
he is unaware whether
the terra cotta pipe ties into the respondent's drainage structure, the
evidence tends to establish
that it does. The claimant installed an eight-inch plastic pipe at this
location sometime in the
1970's, which replaced part of the terra cotta pipe on 100 feet of the
claimants' property.

On May 31, 1985, there was approximately five inches of rain over a
12-hour period.
Claimant David Bomboy testified that a plastic mild jug and some large
rocks had gotten into
the pipe leading from the culvert. He stated that the culvert is the
only opening in the pipe, and
that the water backed up and flooded the basement of his home with
approximately 30 inches of
water. Claimant notified respondent of the problem and was able to
unclog the pipe with the
assistance of the town council and the volunteer fire department.

In order to correct the problem, claimant David Bomboy dug ditches
under the foundation of
his home, tore up the basement floor, and installed floor drains and a
new drain out of the house.
Although claimant removed a plastic milk jug at that time, he cannot say
from which pipe it was
removed. The drain from his washer located in the basement did hook into
the eight-inch plastic
pipe. His washing machine, kitchen sink, and the sink in the basement
are also hooked into this

Terry Kesner, Maintenance Engineer for respondent in Grant and Mineral
Counties, testified
that he is familiar with the drainage on Route 90 at the location in
question. He, along with
several other of respondent's employees, visited the property on July
12, 1985. He had not
received any complaints prior to July 12, but considerable damage had
been done to the streets
of Bayard from the extensive rainfall of May, 1985. The storm was a "100
year storm," and was
considered to be a "catastrophe." He stated that none of the drainage
structures on the primary
roads are designed to carry more than a 50-year frequency storm. He
reviewed a set of plans
from 1929 and determined that 44 lineal feet of reinforced concrete
pipe, 18 inches in diameter,
was placed underneath State Route 90 with a standard concrete head wall
on the inlet.

Kesner explained that there was no grate located over respondent's pipe
as there has not been
a major construction program or project in Bayard since 1929. In his
opinion, the water
problem is a direct cause of the fact that claimants' basement floor
level is lower than the inlet
elevation of the 18-inch pipe on State Route 90, and with claimants'
drain entering into this
eight-inch pipe and with the eight-inch pipe obstructed, the water would
be forced back up into
claimants' basement. He could not say of his own knowledge that
claimants' eight-inch pipe is
connected to the State's culvert.

From the record in this case, it is difficult for the Court to believe
that the diversion of surface
water, caused by a stopped culvert, was the sole cause of the damages
claimed. The extensive
rainfall was a significant factor in the water problem. To hold that a
diversion of water from a
stopped culvert was the sole, direct, and proximate cause of the damage,
is unwarranted from
the evidence. However, it is clear that the absence of a grate on the
culvert was certainly a
contributing factor in the flooding.
Claimants' damages included 60 hours of labor for himself and his son
at $1200.00 as well as
$997.00 for the freezer, washing machine and hot water tank. After
considering all of the
evidence, the Court is of the opinion that the most the claimants could
recover, if all of the
damages were the result of the respondent's negligence, would be
$2084.00. The Court is
further of the opinion that the respondent was at most 33% negligent,
and, accordingly, the
Court makes an award in the amount of $694.67.

Award of $694.67.