OPINION ISSUED MARCH 9, 2000
DELBERT E. LOCKHART AND BETTY LOU LOCKHART
VS.
DIVISION OF HIGHWAYS
(CC-97-106)

Claimants appeared pro se.

Andrew F. Tarr & Xueyan Zhang, Attorneys at Law, for
respondent.
WEBB, JUDGE:

Claimants brought this action for damages sustained to their
real property due to the alleged negligent maintenance of a ditch
on the westerly side of County Route 15, locally known as Berry
Hill Drive, off of W.Va. Route 119, near Davis Creek. County Route
15 is a road maintained by respondent in Kanawha County. The Court
is of the opinion to deny this claim for the reasons more fully set
forth below.

Claimant Delbert Lockhart has resided at this location on
County Route 15 for the past fifty-two years. County Route 15 is
a secondary road that traverses in a north-south direction. The
road abuts a hillside on the easterly side above claimants'
residence and there is a hollow in the westerly side. In 1973,
claimants placed a manufactured home on the property. Beginning in
1982, claimants remodeled the manufactured home into a two-story
residence. Claimants installed a driveway approximately ninety to
one-hundred feet in length which extends from the north to the
south across and down the hillside in front of the residence to the
bottom of the hill on the south side of the residence. This
driveway has a large parking area which leads to a double car
garage. Between the garage and the residence, there is a
breeze-way. At the back of the residence, there is a patio that
wraps around the north side of the house to the front of the house
where it extends across the length of the house. Claimants also
built a fifty-six foot canopy six to seven years prior to November
17, 1999, where they store their motor home. Claimants' residence
is situated between the bank of Davis Creek to the east behind
their home and County Route 15.
At the November 17, 1999,
hearing, claimant Delbert E. Lockhart stated that one of his
neighbors informed him that his property is in an area that is
considered to be a flood zone by the Federal Emergency Management
Association . During the mid 1980's, claimants began placing fill
dirt onto their property. Over a three-year period of time,
claimants raised the level of their property behind their residence
from approximately four feet above the creek to fifteen to eighteen
feet above the creek. They have not experienced any flood problems
from Davis Creek.

Adjacent to claimants' property to the north on the hillside,
there is an abandoned mine. The opening of the mine is at ground level at the rear of claimants' residence. This structure has
caused problems on occasion which are explained herein below.

Across County Route 15 on the west side of the road, there is
a hollow with certain drainage structures. Above the hollow there
are two residences in an area known as "Garden Heights," one of
which was built on fill material. Respondent has placed some large
rocks on the side of the hill where the house built on the fill
material is located. Below this area, about one-hundred-fifty to
two-hundred feet, there is a drain in the hollow. This hollow is
directly across County Route 15 from claimants' property. During
the 1980's, claimants allege that garbage was illegally dumped into
the hollow. This occurred on many occasions. As a result of the
illegal dumping, the drainage structure for the hollow became
clogged during periods of excessive rainfall and water flowed
across County Route 15 onto claimants' property. Claimant Delbert
E. Lockhart was aware of and knew the identity of the individuals
responsible for the illegal dumping. On several occasions, he
contacted the West Virginia Division of Natural Resources regarding
the illegal dumping problem, but he asserted that nothing was done
to resolve the problem.

Claimants testified that on three specific occasions July 31,
1996; June 11, 1998; and June 13, 1998, water from the hollow
flowed over County Route 15 and onto their property. Claimant
Betty Lou Lockhart compared the flooding on their property to
"Niagara Falls." In 1996, water about seventeen inches high flowed
onto the back patio and breeze-way between the house and garage.
This flooding caused mud to flow onto the patio, into the
breeze-way, into the kitchen area, and even into the foyer from the
front door. This claim is based upon the damage to claimants
property and residence as a result of the these occasions of
flooding.

According to Mr. Lockhart, the original stone culvert under
county Route 15 had fallen into a state of disrepair and had been
clogged for about twelve years. In an attempt to alleviate the
drainage problem caused by the illegal dumping, claimants' son
installed an eighteen-inch elbow pipe into the original stone
culvert about one foot deep. Claimants' son then cut holes in the
top of the culvert pipe so that water would flow through it and in
the process keep trash and debris out of the pipe. At the end of
the pipe, claimants' son also placed a screen over the pipe. Mr.
Lockhart acknowledged that the screen trapped trash, but he
asserted that he and his family personally maintained the drain.
Later, the eighteen inch pipe was washed out by flooding and Mr.
Lockhart and his son replaced it with a thirty inch drain pipe.

While Mr. Lockhart asserted at the hearing that the pipe was
thirty-six inches, respondent's expert in geotechnical engineering,
Dr. George Alan Hall, testified that he measured the pipe and found
it to be only thirty inches. Then, a catch basin, also known as a
"clean out," was constructed by Mr. Lockhart and his son to channel
water into the creek and to alleviate the trash problem. In June or July of 1999, a stone wall was built on the road side of
claimants' property to divert water from their property into Davis
Creek which is about fifty-five feet from the garage.

Claimants contacted respondent on approximately ten to twelve
occasions in 1990 regarding this drainage problem. While respondent
has taken measures to address the drainage problem, claimants
assert that the problem still exists and water continues to come
over the roadway onto their property. Claimants are of the opinion
that the matter could be permanently resolved if respondent would
install a walk-through pipe across their property to channel the
water from the hollow across the road into Davis Creek instead of
onto their property.

Due to the flooding on their property, claimants have had to
replace marble tile, carpet, and the entry door. To prevent
further flood damage to the garage area, claimants moved their
garage door from the front side of the house to the end of the
house. In addition, claimants anticipate having to install a
retaining wall on the property. At one time, claimants had a fence
line, but it has been washed out by the flooding. Claimants
established that they have sustained damage in the amount of
$11,859.62 as a result of the flooding. They do not have a
homeowners insurance policy which would have covered these damages.

Moreover, in 1998, the main water line burst causing part of
the bank on claimants' property to slip. Claimants received $8,000
from the water company to compensate them for their losses at that
time. Additionally, respondent installed piling at the edge of
County Route 15 to stabilize its road adjacent to the hillside
above claimants' property.

On another occasion in March, 1999, the abandoned mine "blowed
out" [sic] and water began seeping out of it. Water went through
the soil which was covering the mine entrance. In an effort to
eliminate water seepage from the mine, Mr. Lockhart got a backhoe
and dug a ditch from the opening of the mine to the creek. The
Division of Natural Resources and the Mine Reclamation Department
investigated this incident. Since then, the Mine Reclamation
Association reclaimed the land and repaired the damages to
claimants' property caused by the landslide. At that time, the
Abandoned Mine Association installed piling adjacent to claimants'
driveway to stabilize the hillside adjacent to the driveway.

The position of respondent is that it took immediate
corrective measures as soon as it received notice regarding the
drainage problem on County Route 15. Highway Administrator Charles
E. Smith visited claimant's property during the 1980's to install
a driveway drain and to clean debris out of the inlet end of the
pipe. Before Mr. Lockhart and his son installed their drainage
system, Mr. Smith indicated that there were no records of drainage
problems. Additionally, respondent has repaired three slides on
County Route 15 during the three years prior to the November 17,
1999, hearing. According to the then acting Saint Albans
Supervisor David Charles Starcher, pilings were installed adjacent to the site in question during Christmas of 1996.

In the spring of 1997, respondent's employees completed a
drainage analysis and determined that it was necessary to install
a thirty-six inch by forty feet smooth interior pipe across the
road and on top of the existing culvert to address the drainage
problem on claimants' property. This pipe is about four feet deep.
In addition, respondent installed an overflow pipe near the top of
the existing culvert and down into the catch basin. The catch
basin, located just below the road, connects the pipes constructed
by claimant and additions by respondent. The additions made by
respondent's employees tied the two pipes together because
claimants' pipe was so much lower than the one that it added to the
thirty-six inch smooth interior pipe. Respondent's employees also
added onto the cinder block basin built by Mr. Lockhart and his
son. Currently, the pipe is one hundred seventy-seven feet from
the water-hole to the point where it discharges into Davis Creek.
Further, respondent advised claimants to contact the Division of
Natural Resources regarding the illegal garbage dumping in the
hollow.

Respondent's employees have cleaned debris from the culverts
and also removed the portion of chain link fence placed by
claimants' son which was covering the drainage pipe. Respondent's
employees believed that the covering was not necessary. According
to respondent's expert in geotechnical engineering, Dr. George
Alan Hall, the construction of the riser pipe trapped water and the
water ponded, creating a sediment dam off the State's right of way.
During a visit to the site in 1998, Mr. Smith described the water
as "sitting like a pond." Water would have to build up in order to
flow through the pipe. Dr. Hall testified that the pipe claimant
installed could not carry the same amount of water the original box
culvert carried, and, in fact, claimants' drainage project
exacerbated the problem. The velocity of the water drew in trash
which was then trapped by the screen, diminishing the pipe's flow
capacity.

According to Dr. Hall, there were two sources of water; the
mine and the hollow. These sources of water were causing the
damage to claimants' property. Dr. Hall visited the site in August
1998, September 1998, and November 1999 to conduct an examination
of the property in preparation for testifying before this Court.
Dr. Hall described the drainage system in detail that exists in the
hollow, under County Route 15, and through claimants' property to
Davis Creek. He explained that the riser structure or pipe placed
by the claimant actually created a sediment area with ponding
occurring behind the structure. The culvert pipe placed by
claimant is a thirty-inch pipe which cannot carry the flow of water
from the original box culvert. Thus, water backs up and ponds at
the upper end in order to push water through his system to flow to
Davis Creek. Dr. Hall informed the Court that there had not been
any problems with drainage in the area until the claimant installed
his pipe. After that point, sediment became trapped because the water was being ponded. Then the addition of the riser by claimant
compounded the problem and made it worse. The fencing placed at
the inlet portion of respondent's thirty-six inch pipe acts as a
trash rack so the flow of water through it is diminished. The
length of claimants' pipe at 177 feet also reduces the capacity of
the pipe due to the friction of the water. The cure in his opinion
is for claimant to install a conduit pipe with a larger capacity
than the box culvert originally installed by claimant, which would
resolve the capacity problem.

Dr. Hall also explained that the claimants' property is
subject to the flow of water from two drainage areas, i.e., the
hollow and the mine. The trash dumped by various people in the
area above the hollow for which respondent has no responsibility
has caused a portion of the problem and the actions taken by the
claimants themselves altogether created the flood problems
experienced by the claimants.
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).

In the instant claim, claimants have failed to established
that respondent maintained the drainage structures on the east side
of County Route 15, in Kanawha County, in a negligent manner. The
Court is of the opinion that respondent, once on notice of the
situation on County Route 15, took immediate and reasonable action
to prevent any further drainage onto claimants' property from
excess water flowing across the road onto their property. The
terrain in this area of County Route 15 places claimants' property
in a low place which is the natural drainage area. In addition,
the Court concludes that there are many factors, other than the
actions taken by respondent, which have brought about the drainage
problems and the resulting floods causing the damages to claimants'
property. Consequently, there is insufficient evidence of
negligence on the part of respondent upon which to base an award.

In accordance with the findings of fact and conclusions of law
as stated herein above, the Court is of the opinion to and does
deny this claim.

Claim disallowed.
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