OPINION ISSUED DECEMBER 20, 2000
FRED SAVAGE, ADMINISTRATOR OF
THE ESTATE OF LUTHER SAVAGE
DIVISION OF HIGHWAYS
Ward Morgan, Attorney at Law, for claimant.At the initial
hearing of this claim on November 7, 1999, claimant Luther Harmon
Savage was represented by Abishi C. Cunningham. Sometime later
Donald L. Pitts became counsel of record. Currently, counsel of
record in this claim is Ward Morgan.
Andrew F. Tarr, Attorney at Law, for respondent.
Claimant brought this action for damae sustained to real
property allegedly caused by the negligent maintenance of the
drainage system on County Route 1, locally known as West Virginia
Avenue in Panther, McDowell County. At this location, County Route
1 is maintained by respondent. This claim was bifurcated at the
initial hearing and the issue of liability was heard by the Court;
the parties were later informed that the Court was of the opinion
that there was liability on the part of the respondent; thereafter,
several attempts were made by the Clerk of the Court to schedule a
hearing on the issue of damages. The claim recently was set for
hearing on November 16, 2000, at which time the Court received and
filed a stipulation wherein the parties agreed to the amount of
damages. The Court is now prepared to make an award in this claim
for the reasons more fully set forth below.
On June 5, 1989, Luther Harmon Savage and Helen Savage
purchased the subject property in Panther, McDowell County. Since
the November 7, 1996, hearing, Mrs. Savage passed away and Mr.
Savage was appointed as the administrator of her estate.
Thereafter, Mr. Savage passed away, and Fred Savage was appointed
as the administrator of his estate. The property is situated
downhill from County Route 1. At this location, County Route 1 is
a third priority, one-lane asphalt road. Beginning in July 1994,
Mr. and Mrs. Savage began to experience drainage problems from
water on County Route 1. On one occasion in July 1994, the Savages
experienced substantial amounts of water flowing onto their
property. A drain which is located fifty-two feet from the Savage
property allegedly became clogged and the water flowed down the
road, proceeded down the driveway and into the yard. Mr. Luther
Savage asserted that the water turned his once grassy yard into a
"mud hole." The water also caused the foundation of his residence
to sink two to four inches. Mr. Savage placed about fifteen tons
of gravel in his yard, but the water flowing into his yard washes
it down the side of the mountain to the rear of the property. On
several occasions, Mr. Savage had to resod the grass in his yard. On one occasion, there was a landslide which broke off part of the
road and deposited debris onto the property. He stated that the
water created holes in his yard. Mr. Savage contacted respondent
by telephone and in person regarding the problems caused by the
water flowing onto his property.
Thereafter, respondent reconstructed the drainage system and
placed gabion baskets around the drain. A truck-load of debris was
removed from the property. Respondent attempted to clean out the
drain pipe, but according to Mr. Savage, it remained stopped up.
In addition, respondent ditched the side of County Route 1 at the
base of the mountain in an attempt to prevent water from flowing
onto the Savage property. Mr. Savage testified that he had to
personally clean out the drain pipe and the ditchline on several
occasions. Since then, a significant amount of water flow has cut
an area six to eight inches wide across the property. This area is
about ten feet from where water originally cut a swath across the
property. However, when the drain pipe is clean and the ditchline
is clear, the water flows through the drain and claimants have no
problems on their property. Mr. Savage tried to keep the drain
pipe and the ditchline clean himself in an attempt to protect his
property from the excessive water flowing from the road.
The position of respondent was that it was not negligent in
its maintenance of the drainage system on County Route 1.
According to Crew Leader Kenneth Bowles, County Route 1 is a third
priority road. The area in question experienced flooding over the
period of July 11 and 12, 1994. At that time, respondent tried to
conduct repairs on damaged roads, based on priority. Mr. Bowles
asserted that the damage sustained to the Savage property was a
result of sudden flood waters over-flowing the ditch. Prior to
this time, employees of respondent dug a one foot deep ditch and
checked the drains. Mr. Bowles further testified that the drains
The Court has held that respondent has a duty to provide
adequate drainage of surface water, and drainage devices must be
maintained in a reasonable state of repair. Haught vs. Dept. of
Highways, 13 Ct. Cl. 237 (1980). In claims of this nature, the
Court will examine whether respondent negligently failed to protect
a claimant's property from foreseeable damage. Rogers vs. Div. of
Highways, 21 Ct. Cl. 97 (1996).
The Court is of the opinion that respondent was negligent in
its maintenance of County Route 1 in McDowell County. Respondent
had actual notice of the excessive water problems occurring on the
Savage property. Steps were taken by respondent to correct the
problem, but the Savage property sustained damage thereto prior to
the time that respondent took the corrective measures.
Consequently, claimant herein may recover the sustained loss.
As a result of the events described above, the Savage property
sustained damage which originally was stated in the claim to be in
the amount of $9,000.00. However, as noted herein above, the
parties have agreed to stipulate the damages in the amount of $4,000.00. Respondent agrees that the stipulated amount of damages
as put forth by the parties is fair and reasonable.
In accordance with the findings of fact as stated herein
above, the Court is of the opinion to and does make an award in
Award of $4,000.00.