OPINION ISSUED FEBRUARY 5, 1993
J. H. SOMERVILLE
DIVISION OF HIGHWAYS
Claimant present in person.
James D. Terry, Attorney at Law, for respondent.
Claimant, J.H. Somerville, seeks an award from respondent for property damages in the amount of
$2,247.26 for damages resulting from the failure of respondent to maintain a ditch on property he
owns in Mason County, West Virginia, on Owl Hollow Road. Claimant alleges that respondent has
failed to maintain the ditch line and it is now grown over. His claim is for the cost to clean out the
ditch line, place more tile in the ditch line, and plant grass seed to cover area thus providing an area
for ingress and egress on the property.
From the evidence adduced at the hearing on October 8, 1992, it appears that the claimant purchased
this property twenty years ago and now wishes to build a house on this property, but these is a ditch
which was placed by respondent for the purpose of draining water from a highway owned by
respondent. He claims that there was an agreement with the previous owner that respondent would
maintain this ditch.
The claimant testified that he purchased the property on August 17, 1972; that the prior owner had
given a right of way to the State for the purpose of digging such a drainage ditch on the
superintendent who had agreed on behalf of the respondent to maintain the ditch. The ditch is 280
feet long. Claimant also testified that he would like for the respondent to pay the cost of cleaning the
ditch out to prepare it for bulldozing, and the cost of bulldozing the ditch to place three more tile so
that he may have a way to drive into and around his property.
The Court finds, as a matter of fact, that the claimant does not have a remedy in this forum; that if
the respondent has taken his property without just compensation, claimant may wish to pursue a
remedy in the circuit court, seeking to compel the State to institute a condemnation action against
the property; and further, that claimant has not established that the respondent has a duty to maintain
the ditch which is located on his property.
As this Court lacks jurisdiction over the subject matter of this claim, the Court must deny the claim.