OPINION ISSUED AUGUST 10, 1987
LINDA ELAINE MOORE
DEPARTMENT OF HIGHWAYS
Claimant appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
Claimant seeks an award of $6,000.00 for damage to her property
at Lick Creek,
Boone County, in the vicinity of Danville, West Virginia. Claimant
alleges that respondent's
negligent installation of a bridge at that location resulted in
to her property.
Claimant testified that she owns approximately one acre of
with 45-50 feet of
frontage on Lick Creek. A bridge crosses Lick Creek in front of
claimant's property. Lick
Creek flows between claimant's property and Lick Creek Road.
stated that there is an
area on her property of approximately 46 feet in length which has
eroded by the Lick
Creek. This eroded area has cut back into her property
four feet. She attributed
the erosion to the lack of an adequate retaining wall adjacent to
Claimant stated that Lick Creek Road is a two-lane, blacktop road.
bridge is one lane
and is seven or eight feet long and is made of concrete with steel
siding and rails. There are very
large stones placed along the bank adjacent to the abutment.
Claimant testified that in November of 1986, when the area had
high water due to
torrential rains, the water flowed across the bridge as the space
beneath the bridge was not
adequate to carry the water. Prior to that time she had not
erosion on her property.
She stated that debris, limbs and rocks gather under the bridge.
creek is normally
approximately ten inches deep and three feet wide.
Claimant stated that the bridge was in the same location in
1984 as it is today.
She also confirmed the fact that the creek bank has not been
since December, 1984.
She agreed that the eroded section is located on her property and
right-of-way. She stated that she entered the creek, took the
placed the stone against the
bank, and then poured cement on top of this stone. She did this in
attempt to alleviate the
erosion to her property.
Dale Edward Blount, Maintenance Assistant in Boone County for
respondent, testified that he
and David Starcher visited claimant's property on November 18,
her request. He took
photographs and observed the erosion on the bank of claimant's
He returned later in
December with equipment and attempted to clean out debris from
he was unable to do so due to lack of access to the creek.
He reviewed the bridge inspection reports for the years 1977,
1983 and 1986. From
these reports, he discerned that the house was constructed after
bridge. The 1986 report
features the house. He stated that he observed no damage to the
from water. He also
stated that at the time he inspected claimant's property and took
photographs, the lawn went
all the way to the creek bank.
Joseph Thomas Deneault, Assistant District Maintenance Engineer
District 1 for
respondent, testified that he is familiar with the bridge which is
subject to this action. He
stated that the alignment of the creek is the same today as it was
1976 when he first observed
it. However, he stated that the configuration of the bottom and
the creek have changed.
In his professional opinion, this bridge is in the correct
the creek. He stated that the
stream alignment in October of 1977, when the bridge was inspected,
the same as it is today.
He noted that to his knowledge, since 1976, the respondent has done
nothing to alter the stream
bank or the channel. It is his opinion that the preparation of the
property in advance of
construction of the house led to the erosion of the bank of
After careful consideration of all of the evidence presented, the
concludes that the
damage to claimant's property did not result from lack of
the bridge. It is
apparent that other factors, including excessive rainfall and the
preparation of claimant's
property for construction, contributed to the water problems. As
was no negligence
established on the part of the respondent, the Court must disallow