OPINION ISSUED MAY 19, 1992
FRANK L. CONN D/B/A FRANK CONN REALTY
DIVISION OF HIGHWAYS
Claimant represents self.
James D. Terry, Attorney at Law, for respondent.
On or about May 26, 1990, the claimant, a resident of Boomer, Fayette County, contracted with a
third party to have broken tree limbs removed from his property. After expending $300.00 for the
tree trimming, the claimant learned that the tree was within the State's right-of-way, and that
respondent would have removed the tree limbs at no expense to the claimant. It is uncontroverted
that the location of the tree is within the State's right-of-way adjacent to U.S. Route 60, property lot
55, Smithers, Fayette County. The issue before the Court is whether the claimant, as a volunteer, may
be reimbursed for the $300.00 he incurred by having the tree limbs removed.
The actions of the claimant in safeguarding the right-of-way and underlying roadway from the
potential danger of falling tree limbs is admirable. However, this is not a case where the respondent
failed to perform the tree work. The respondent simply was not informed of the matter. It appears
from the testimony that if the respondent had been aware of the broken tree limbs, it would have
responded promptly. Testimony indicates that respondent did act promptly after a storm in May of
1991 when there was damaged a tree in the same right-of-way. It was after the occurrence of that
storm in May 1991 that the claimant realized that the respondent should have removed the tree limbs
one year earlier for which claimant assumed the responsibility.
The Court finds that the claimant was a "volunteer" by having the broken tree limbs removed at his
own expense from the right-of-way, when such removal would have been performed at no expense
to the claimant by the respondent. The West Virginia Supreme Court of Appeals has ruled that one
acting as a volunteer must notify the party upon which an obligation to act may be first charged
before the volunteer may expect to be compensated for his/her intervention. Hill v. Ryerson & Son,
Inc., 165 W.Va. 22, 268 S.E.2d 296 (1980). Accordingly, a volunteer's unilateral act, albeit
reasonable and undertaken in good faith, cannot bind the responsible party, without notice and an
opportunity to first act. Jennings v. U.S., 374 F.2d 983, 986 (4th Cir. 1967). As notice of the broken
tree limbs and an opportunity to maintain these limbs was not afforded the respondent, this Court
cannot award the expenses voluntarily incurred by the claimant in the removal of the tree limbs.
In accordance with the findings of fact and conclusions of law stated herein above, the Court is of
the opinion to and does deny this claim.