OPINION ISSUED JANUARY 19, 2001
DAVID BOYD MARTIN
VS.
DIVISION OF HIGHWAYS
(CC-97-236)

William M. Tiano and Justin C. Taylor, Attorneys at Law, for
claimant.

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

Claimant brought this action for damaes sustained to his real
property and to his family residence due to the alleged negligent
maintenance of the drainage system along County Route 31, locally
known as Poca River Road, in Poca. County Route 31, at this
location, is maintained by respondent in Putnam County. The Court
is of the opinion to deny this claim for the reasons more fully set
forth below.

On May 5, 1993, claimant purchased eight acres of real
property with a residence built thereon in Poca, Putnam County, for
the amount of $65,000.00.
This property was the subject of a
prior claim by the prior landowners, O.L. "Pete" Westfall and
Rebecca Westfall. See Westfall vs. Dept. of Highways, 16 Ct. Cl.
23 (1985). In that claim, the Court made an award of $42,500.00
for respondent's negligent maintenance of the ditchline on County
Route 31, which caused a landslide. The property was appraised for
$68,000.00. The prior landowner had informed claimant that a
landslide had occurred on the property in 1977, and that he had
made repairs to the best of his ability.
In three specific
instances during Claimant's testimony, he stated that:
"Pete Westfall told me about the slip in the `70s and about the
state rebuilding their portion of their area and he had fixed his
property to the best of his ability to where it was at when I
purchased the property" (Vol. 1, Pg. 64, lines 18-22)

* * *

"There was only one agreement. He (Pete Westfall) agreed, in
the agreement it states that he had told me of the previous slip 15
years approximately and that he had repaired the home to the best
of his ability and he was not going to warrant or guarantee the
-(property)" (Vol. 1, Pg. 79, lines 9-13)

* * *

"To the best of my knowledge, Mr. Westfall informed me that
the slip had happened in 1977 and the retaining wall, it took out
the road by what he's telling me, and they installed the retaining
wall I'm saying right after the slide number one." (Vol. 1, Pg. 84,
lines 19-22 and Pg. 85, Line 1). Thereafter, claimant purchased
the property, although he did not have the property inspected
independently. An insurance agent inspected the property for insurance purposes at the time of purchase. The agent testified
that she could not recall whether any repairs were necessary, but
added that a homeowner's insurance policy would not have been
issued if serious repairs to the residence were necessary. Claimant
and his family moved onto the property during the fourth of July
weekend in 1993.

At the location in question, there is a seventy foot
difference in elevation from County Route 31 sloping downhill, in
a northeastern direction, to the Pocatalico River. The distance of
this slope between the road and the river is about six-hundred to
six-hundred-fifty feet. The southwestern side of County Route 31
is a vast mountainous hillside. Claimant's residence is situated
two-hundred-fifty feet uphill from the Pocatalico River. There is
a driveway four-hundred to four-hundred-fifty feet long and nine
feet wide, which traverses from the road to the residence. A
septic tank is located on the property between the river and the
residence. On the upper hillside, about three-hundred to
four-hundred feet from the residence, a barn also is situated on
the property. Approximately seven-hundred feet of claimant's
property fronts County Route 31, which is a sixteen foot wide
medium priority road.

Claimant's problems on his property began on December 24,
1993, when a water line about eight-hundred feet from the
residence, pulled apart nine inches. This was repaired by claimant
soon thereafter. Then, on the morning of March 15, 1994,
Claimant's wife noticed that the basement wall was bowing and she
could not enter the downstairs bathroom. Claimant determined that
the residence had shifted nine inches. He and his family were
forced to leave their home within two days because the foundation
of the house shifted. The driveway had developed cracks and
separations which made it unsafe for ingress and egress to the
house. Claimant inspected the property and discovered that earth
movement was putting pressure on the residence. He tried to remove
this pressure, but he was not successful in his efforts. Not all
of Claimant's eight acres were damaged.

In the fall 1996, claimant's residence was destroyed by a fire
that was determined to be arson. The perpetrator of the crime was
not apprehended. Although the residence was insured for the amount
of $75,000.00, claimant and his insurance carrier became involved
in a dispute over payment of his claim. Ultimately, the claim was
settled for $30,000.00. The land itself was not insured. In the
present claim, claimant did not assert a determined amount of
damages, which, in the opinion of the Court, is limited to the
value of the land.

Claimant was aware that after a major slide had occurred on
County Route 31 in 1977, respondent built a three-hundred foot
retaining wall with an eighteen inch culvert beneath the road
surface. This culvert extends approximately three feet past the
retaining wall with the outlet end discharging any water from the
culvert onto Claimant's property. The water flows downhill from the southwestern side of County Route 31 across his property to the
river which is approximately six-hundred feet from the road.
Claimant asserts that respondent has done nothing further to
control this water during his time of occupancy at the site. He
estimates the water flow from the culvert at one gallon every two
minutes. According to Claimant, the major source of the slide
problems occurring on his property is this particular culvert that
discharges water onto his property.

According to claimant's expert in landslides and culvert
construction, Alexander Brast Thomas, the culvert beneath County
Route 31 described herein above is the proximate cause of the
damage to claimant's property. According to Mr. Thomas, respondent
did not provide a path for the water discharging from the culvert
to the river. Thus water discharges from the culvert at the base
of the wall, allowing water to be absorbed into the subsurface of
the ground, weakening the soil, and causing slip conditions. Mr.
Thomas opined that the culvert is the primary source of water and
there is no outfall protection or any other structure to convey
water toward the river. While Mr. Thomas did not observe any other
source of water, he did not examine the subsurface of the ground to
ascertain its present condition for suitable construction of a
residence. Similarly, Mr. Thomas asserts that topographical maps
indicate that this area is a landslide prone area. This fact
provides a "caution" to a contractor, but the land can still be
used for construction purposes.

Mr. Thomas believes that the culvert pipe had been moved down
river after the 1977 landslide.
However, testimony from the
hearing in Westfall indicates that there was no retaining wall
prior to the 1977 slide and it would appear to the Court that the
retaining wall in question was the only wall located on the
property. He suspects that the prior culvert pipe through the road
was located above the residence before the 1977 landslide, but that
it was replaced and relocated to its present location afterwards.
However, Mr. Thomas could not specifically locate the prior culvert
pipe. He thought that there had been a cross drain through the
road at the head of the first slide. Unfortunately, the survey
notes from the survey conducted by respondent's district employees
of the area in question end at the side of the residence. In the
area beyond the residence, Mr. Thomas believes that there was a
problem in this area in the past and respondent conducted some kind
of repair project.

Furthermore, Mr. Thomas testified that he was not surprised
that the landslide resumed its activity since 1977. He theorized
that the 1994 slide was preventable, but after respondent
constructed a stable retaining wall, it left a disaster zone
between the retaining wall and the river. Mr. Thomas is of the
opinion that the Martin property currently is unstable and useless
for any residential purpose. Mr. Thomas further testified that in
order to adequately rebuild the land, it would require about
one-half million dollars of construction work.

The position of respondent is that it was not negligent in the
maintenance of the drainage system on County Route 31. Both Andrew
Morgan Allen, then Maintenance Assistant for respondent in Putnam
County and respondent's Operations Assistant Laura Ann
Conley-Rinehart testified that the area in question is prone to
landslides. Ms. Conley-Rinehart testified that the position of
respondent is that if a landowner builds in an area prone to
landslides, then the landowner is responsible for the drainage
because respondent is an intermediate property owner. She admitted
that respondent directs water through its culvert onto claimant's
property in order for the water to flow to the lowest point. She
stated that this is a common practice by respondent. She contends
that the property owner is responsible for the water once it flows
from respondent's property.

Ms. Conley-Rinehart also testified that she and then Area
Maintenance Manager, Dennis Charles Runyon, visited the site in
April, 1994, in response to a complaint from Claimant. Both
individuals testified that they observed the driveway in a state of
disrepair, which Ms. Conley-Rinehart believes is indicative of a
continuing active landslide. Mr. Runyon testified that he observed
the deck and chimney had pulled away from the residence.
Additionally, Ms. Conley-Rinehart as well as Mr. Runyon testified
that they observed what they thought to be spring water flowing
across from Claimant's property on the south side of County Route
31. After the April, 1994, inspection, both Ms. Conley-Rinehart
and Mr. Runyon assert that they did not notice any movement from
the road or wall and could not identify anything that the State had
done to create a problem. Thereafter, Ms. Conley-Rinehart relayed
the findings of the onsite inspection to the office of the Highways
Commissioner. The claimant previously had written to the
Commissioner, the Governor, one of our U.S. Senators, and his
Congressman about his problem and said findings were incorporated
into letters from the Commissioner to the Senator and Congressman.

Mr. Allen stated that he was unaware of the natural drainage
area of the water from the culvert, but he assumed it went to the
river. Between March 15, 1994, and November 1999, respondent's
employees only conducted repaving and reditching projects in the
area for the control of surface water. Respondent did not conduct
any activities with regard to the control of soil movement in the
area in question.

Dr. George Alan Hall, respondent's expert in geotechnical
engineering inspected the Martin property on two separate occasions
after the 1994 slide. According to a West Virginia Geological and
Economic Survey map, Claimant's property is located in an active
landslide area. Thus, when the residence was built in 1974, he is
of the opinion that it was built in the middle of the active slide.
The previous landowner (Westfall) or his contractor had excavated
soil from the toe of the slope during construction of the residence
thus reducing the stability of the slope. The piling project and
retaining wall completed by respondent after the 1977 landslide had alleviated the slip effects upon the road, but not upon the land
below the retaining wall. Dr. Hall determined that the slide is
actually occurring some twenty-five feet downhill from the road
near a scarp on Claimant's property,. He observed a topographic
condition that he described as "bulging or protruding contours."
This condition indicates that the river has been protruded, but
that the natural drainage channel has cut through this protrusion.
All of these facts indicate an ancient landslide which extends
from the hillside above the road all the way to the river itself.

Further, Dr. Hall opined that during construction of the
residence, the distinct natural drainage channel had been diverted
from its natural path. The survey results, which were incorporated
into a topographical map, depicted the actual drainage channel from
the culvert pipe under County Route 31. Water had flowed in the
natural drainage channel until changed by the prior landowner's
excavation. Dr. Hall asserts that the topographical information
contained in Commissioner's letters mentioned above support the
original design of a culvert. The culvert collects the water and
directs it toward the natural drainage channel. Not much water
flows through the culvert pipe, neither is there a lot of soft
ground near the outlet of the culvert pipe. The water flows
through the culvert pipe in a defined channel at a high velocity,
causing less water to touch and saturate the soil. Dr. Hall stated
that less water infiltration occurs when water flows in a
concentrated path down a natural drainage channel. If there were
no culvert pipe, the water flow would spread over the ground and
saturate the soil.

Moreover, Dr. Hall testified that the culvert is not the
primary or only source of water. Ground water has contributed to
the condition of claimant's property. Several natural springs
located on Claimant's property saturate the soil. According to
Dr. Hall, Mr. Thomas' testimony did not depict water flowing from
holes in the ground, which were created by natural springs.
However, these holes were not depicted in respondent's district
survey. In addition, during March of 1994 the vicinity experienced
almost twenty inches of rainfall, which was the wettest period on
record since 1939. The culprit, according to Dr. Hall, is the
water collecting in the hillside and released in the natural
springs. These natural springs create a "seepage force," which
drags the soil along with it. Dr. Hall surmised that the area could
be repaired for approximately ten to fifteen thousand dollars.

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, Claimant has failed to establish that
respondent maintained the drainage system on County Route 31 in a negligent manner. The Court is of the opinion that respondent took
immediate and reasonable action to repair the road after the 1977
landslide, which prevented further damage to claimant's property.
The terrain in this area is typical of many areas in West Virginia
which are subject to landslides. While the Court is sympathetic to
the situation of claimant, the fact remains that there are many
factors which have brought about this particular landslide problem
affecting claimant's property, including the prior landowner's
construction in a landslide prone area, interfering with the
natural drainage area for the culvert, as well as the natural
springs located on the property. Before purchasing the property,
Claimant alleges that he had a conversation regarding the property
on April 27, 1993, with Andrew Morgan Allen, the then Maintenance
Assistant for respondent in Putnam County mentioned herein above.
According to claimant, Mr. Allen never discouraged him from
purchasing the property or indicated that the property was located
in an area prone to landslides. Mr. Allen disputes this assertion.
In fact, he testified that he told claimant not to buy the property
because he personally believed that it was falling into the river.
According to Mr. Allen, Claimant indicated that he would not buy
the property. Regardless of any conversation with respondent's
employees, claimant was given actual notice of the condition of the
land by the prior landowner, O. L. "Pete" Westfall. The Court is
of the opinion that any conversation between claimant and a State
employee is irrelevant. If a State employee makes a statement
about property to a prospective owner, the statement would normally
be outside the scope of the employee's employment with the State.
Accordingly, the particular employee's action and/or statement as
testified to by Claimant, even assuming its accuracy, would have
been beyond the actual or implied scope of the Mr. Allen's
authority. The Court is of the further opinion that Claimant
failed to exercise reasonable care by not having the property
independently inspected after receiving notice prior to the date of
purchase. Consequently, there is no evidence of negligence on the
part of respondent upon which to base an award.
Furthermore,
claimant's final argument brief cites caselaw that concerns
initiating condemnation proceedings. If the argument in claimant's
brief is to be believed, then this Court would have no jurisdiction
over this claim.

In consideration of all of the above, the Court is of the
opinion to and does hereby deny this claim.

Claim disallowed.
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