OPINION ISSUED AUGUST 2, 1990
BERNIECE E. FATONY
DIVISION OF HIGHWAYS
Charles B. Mullins, II, Attorney at Law, for claimant.
James D. Terry, Attorney at Law, for respondent.
Claimant is the owner of real property located in Glover, Wyoming County, West Virginia. The front
of the property is adjacent to W.Va. Route 97 and the back of the property is adjacent to Rose Street.
Claimant and her husband purchased this property in 1958. In the early 1970's, they added a
basement to the house. Respondent performed construction work on W.Va. Route 97 in 1984-85.
After this construction, claimant alleges that unusual amounts of water began draining onto the
property. This water has caused the ground beneath the house to remain wet all year-round resulting
in structural damage to the house and has caused claimant to abandon the use of the basement due
to constant water problems in the basement. Claimant also alleges that the bank at the front of the
house has not been maintained property by respondent causing an unsightly condition. Claimant
seeks damages for the structural problems and the drainage in the amount of $18,000.00.
The evidence revealed that claimant and her husband, who is now deceased, entered into a
right-of-way agreement with respondent in 1982. Respondent purchased a portion of the front yard
for widening the shoulder and the surface of Route 97. Prior to the construction, there was an open
drainage area from the front to the back of claimant's property which had been placed there by
claimant's husband shortly after they had moved onto the property. It was claimant's understanding
that there would be no open ditches in her yard after the construction.
During the construction which took place on Route 97, respondent came upon a "swamp" area. It
was necessary for respondent to alleviate this condition in order to provide a stable base for the new
road. Respondent placed large boulders for the base of the road and provided a drainage structure
at the swamp area. A two-foot lift of rock was placed for the roadbed and seven or eight inches of
asphalt was laid. Respondent also placed a "filter fabric" on the upper side of the road to catch the
water on that side of the road to eliminate the problem of the water flowing through the rock. The
placement of the boulders for the base of the road created a "french drain" effect under the road to
provide drainage for the road. Charles A. Shaver, Assistant District Engineer in charge of
construction for respondent, explained the purpose of placing the rocks under the road. He stated that
the fill was "daylighted" which means that there is rock all the way to the outside of the base of the
road so that any water would come out through the rock, percolate out and come out into old ground,
which is what it was doing.
In the course of the construction, respondent replaced an eighteen inch pipe under the old road with a thirty inch corrugated metal pipe. This metal pipe connects to a thirty-six inch pipe beneath
claimant's property, and, eventually, the water drains into the Guyandotte River which is
approximately 500 feet from claimant's property.
To provide for drainage from the mountain on the opposite side of Route 97 from claimant's house,
respondent provided a drop inlet. The new road also has curbs to contain the water on the road
surface and to prevent it from flowing onto claimant's property.
After the construction of the new road, claimant noticed unusual amounts of water on her property.
During rainstorms, water would seep into the basement area. Claimant has been unable to use the
basement area due to the constant water problem. The ground beneath the house, where there is no
basement area, remains wet causing the house to be damp year-round. This condition may also be
causing structural problems.
John E. Caffrey, a consulting engineer, testified for claimant as an expert concerning the problems
which claimant is experiencing. It is his opinion that the construction of Route 97 modified the
subsurface drainage or water table and brought it to a lower level. This has caused water to seep into
the soil beneath claimant's home and to migrate into the basement. He was of the opinion that the
construction of a ditch for subsurface water to divert the water around the house into an existing
drainage structure may resolve the problem. He observed that only a small amount of water was
going into the drop inlet on the mountain side of Route 97 which indicates that the water is going
beneath the road.
Respondent contends that it has attempted to alleviate the problems being experienced by claimant
since the construction of the road. Respondent attempted to prevent water from draining from the
fill bank onto claimant's property by constructing a ditch across the front of claimant's property at
the toe of the bank on respondent's right of way. The water should flow from that ditch into the ditch
perpendicular to the road which is between claimant's property and the neighbor. The water will then
flow into a drop inlet designed to take care of surface water. Respondent has also had the contractor
return to the site to place dirt on the bank to cover the large rocks and to sow grass on the bank to
alleviate the unsightly condition which claimant complained about.
The evidence as to damages to the property established that the cost to cure the drainage problems
on claimant's property will be $6,425.00 based upon the lowest estimate.
Claimant was not compensated by respondent for contemplated water damages in the right-of-way
agreement. Respondent's right-of-way agent, Thomas Allen Crutchfield, explained that the reference
in the Statement of Just Compensation to "damage to residue" was based upon the diminution to the
rest of the property for resale purposes only. An amount of $3,400.00 was included in the
compensation to claimant and her husband for damage to the residue, but there was no consideration
given to claimant and her husband for damages for water problems which may have occurred after
The problem which confronts the Court as to the issue of the condition of the bank facing the front
of claimant's property is one of inability to provide a remedy for the claimant. This Court does not
have the authority to compel a State agency to act. Therefore, the Court is unable to afford the claimant a remedy for this portion of the claim.
However, the Court, having reviewed the evidence in this claim as to the issue of the excessive water
drainage on claimant's property, is of the opinion that claimant has indeed experienced an increase
in the amount of water being drained onto her property as a result of the construction on Route 97.
The road was widened and the base of the road was altered in such a way that more than the usual
amount of water is flowing from the opposite side of Route 97 through the material beneath the road
and then seeping into the ground adjacent to claimant's house. The Court is of the opinion that
claimant should be compensated for the cost to cure this water problem. Therefore, the Court makes
an award to claimant in the amount of $6,425.00.
Award of $6,425.00.