OPINION ISSUED MAY 20, 1988
AND SARAH TERRELL
DEPARTMENT OF HIGHWAYS
Travers R. Harrington, Jr., Attorney at Law, for claimant.
Nancy J. Aliff, Attorney at Law, for respondent.
The claimants are the owners of real estate in Kimberly, Fayette
County, West Virginia. Two
culverts adjacent to claimants' property are State-maintained
The claimants allege that
the culverts were improperly and negligently placed by respondent.
addition, claimants allege
that these culverts were not properly maintained by respondent.
Claimants property sustained
flood damage on two occasions in 1986 and 1987. Claimants seek
$12,000.00, which amount
represents damages to both real and personal property.
Claimant Lawrence Terrell testified that he purchased the property
between the years 1975
and 1976. At that time it was unimproved property. Claimants
a house on the
property in 1982 or 1983. Railroad tracks are located between 40 to
feet from the house at
the rear of the property. The tracks are at a higher elevation than
of the foundation of the
house. Claimants' house fronts on a State-maintained road. The back
their house is located in
the lowest portion of the property.
Mr. Terrell also testified that one of the culverts is 75 to 100
from his residence. This
culvert is thirty-six inches in diameter but it was blocked and the
opinion was reduced to nine
inches in diameter. During the weekend of July 4, 1986, there were 18
hours of rain in
Kimberly. As the aforementioned culvert was unable to handle the
the water ran across
the road and surrounded claimants' house. This resulted in 15 to 18
inches of water in claimants'
home. Furniture and other personal property was damaged.
in April of 1987,
there was another heavy rain, and flooding again occurred. As a
of the first experience in
1986, claimants acted quickly at the onset of this second storm and
not sustain much damage
during the second flooding which occurred. Claimant Lawrence
stated that the property
had not experienced any flooding during the first 15 years in which
resided in Kimberly.
He described his house. The lower block was waterproofed and
is at ground level and extends three feet above ground level. There
no down spouts located
on the back of the house. The only down spouts are those which are
located on the front corners
of the house. There are footer drains at the base of the walls of
Robert E. Kelly, a contractor, described the culvert as a circular
culvert. Water passes through
only the upper one-eighth of the culvert. He observed the property
week prior to this hearing.
At that time, there was no evidence that this culvert had been
He testified that the whole
lower level of the Terrell house was ruined. There was extensive
to the doors, walls,
floors and carpet. He estimated that the total repair would cost
James Absher, county road supervisor for respondent, Fayette County,
testified that he did not
recall any complaints concerning the area in the vicinity of
property prior to 1986.
Neither did he have knowledge of any complaints between January 1,
and July 2, 1986.
He stated that the ditch line and the external end of the
thirty-six-inch culvert have been cleaned
out, but not the inlet end. He confirmed that his records do not
that his employees ever
cleaned this culvert.
Bobby Wardrep, maintenance assistant for District 9 for
testified that he was
familiar with this area. He stated that the benefit of opening up
exit end of the pipe, but not
the inlet end, is that often the force of the water and the
on a pipe that size and the
water coming off the mountain will grab clean the pipe out. He
that during heavy rain if
the culvert had been cleaned out and 36 inches of it were free, the
water would have run off
After careful review of the evidence presented, the Court is of
opinion that the damage to
claimants' property resulted from several factors. The unusual
rain at the time of the
floodings contributed to the drainage problem. The fact that
house lacks down spouts
may have contributed to the amount of water which flooded the
In addition, the house
is located in a low-lying, natural drainage area. However, it is
opinion of the Court that
respondent was negligent in its maintenance of the thirty-six-inch
culvert. The respondent had not
cleaned out the inlet end of the thirty-six-inch culvert. The lack
proper maintenance resulted in
a blocked culvert which was the proximate cause of the damage to
claimants' home and
property. However, this block culvert was not the only factor which
caused the flooding and
resultant damage; therefore, the Court is disposed to grant an
claimants in the amount
Award of $9,000.00.