OPINION ISSUED MARCH 28, 1988

CLAUDE BARKER, JR., EUGENE BARKER,
RHODEN BARKER, LAURA TAYLOR,
GRACE CLAYMON, AND HELEN NEFF
VS.
DEPARTMENT OF HIGHWAYS

(CC-87-115)

Claimant Claude Barker, Jr. appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.

PER CURIAM:

Claimant Claude Barker, Jr., in addition to his five brothers and
sisters, own a house and cellar
house on County Route 26, Ritchie County, West Virginia, which they
inherited from their
mother. Claimant is residing in the house at this time. The Court, on
its own motion, amended
the style of the claim to include the five other heirs in whose names
the property is titled. The
claimants seek $1,500.00 for damage to the house roof and cellar house
as a result of a fallen
tree.

The claimants allege that the respondent graded the road approximately
one year before the
date of this incident and damaged the roots of the tree causing it to
fall, and this resulted in the
loss. Claimant Claude Barker, Jr. testified that on or about March 14,
1984, a free fell on the
house. He stated that it was a living red oak tree. He stated that the
house is approximately 10
feet from the highway and the width of the highway is 20 feet. The tree
is located on the
respondent's right-of-way.

William J. Frederick, a neighbor, confirmed the testimony of the
claimant that when the road
was graded a tree root was cut and the tree later fell. He was unable to
state the date when the
tree fell. He testified that the claimants' cellar house was gone, and
the corner of his house was
gone.

Gene Tanzey, County Highway Department Superintendent for Ritchie
County, testified that
he supervises the machinery used by the respondent. Oil drilling was
being done in the area by
individuals not authorized by respondent. Those individuals moved
numerous large bulldozers out
over the road by claimants' house. The testimony indicated that the
respondent did not grade the
road or have any equipment on the road that could have damaged the tree
root.

The claimants' assertion of liability is based on the theory that
respondent was negligent in its
grading of the road near claimants' house, which resulted in damage to a
tree at that location and
subsequent damage to claimants' house. The Court is unable to find
negligence on the part of
respondent as the record lacks proof that respondent performed any
grading. Accordingly, the
claim must be denied.

Claim disallowed.