OPINION ISSUED AUGUST 15, 2002
IN THE COURT OF CLAIMS OF THE STATE OF WEST VIRGINIA
DAVID A. VELEGOL and CAROLYN J. VELEGOL
DIVISION OF HIGHWAYS
Claimant appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent.
Claimants brought this action for damage to their well which
they allege was caused by respondent's negligent drilling of core
borings during a construction project on Route 2 near Colliers in
Brooke County. The Court is of the opinion to deny this claim for
the reasons set forth more fully below.
The incident giving rise to this claim allegedly occurred
sometime in mid-January 1999. A core boring project being
performed by HDR, an engineering firm with which respondent had a
contract, began in late December or early January of 1998. The
core borings were necessary for respondent to design a "cut slope"
along Route 2 in Brooke County as part of a road widening project
to widen Route 2 from a two-lane highway to a four-lane highway.
Claimants' home is located on a hillside above the Ohio River in
Brooke County on a 250 acre farm. Claimants have a 3,000 foot
property line that is adjacent to the east boundary of State Route
2. Claimant David A. Velegol had the well at issue drilled in 1971
at about the same time he had the house built in which claimants
currently reside. The well had a sixteen gallon per minute one and
one-half horsepower pump installed at the time it was drilled and
it was the same pump still in use until the incident at issue. The
well was 177 feet deep. At the bottom of the well, there was a storage capacity of twenty feet. The pump was located
approximately six feet off the bottom of the well so it could avoid
any sediment that may fall there. An aunt and uncle live within
one hundred feet of claimants' home and they are also provided
water by this well. According to Mr. Velegol's testimony, the
quantity of the well water prior to this incident was very stable.
However, on January 23, 1999, claimants first noticed that they had
lost their water. Mr. Velegol testified that he turned on the
spigot and had absolutely no running water. He had not noticed any
problems with the water flow prior to January 23, 1999. According
to Mr. Velegol, the water flow on January 22, 1999 , was perfect.
He stated that he went through a routine series of diagnostic tests
to determine the problem. He ruled out a blown fuse, pump failure,
electrical relay problems, or a break in the lines. He had just
put in new heavy duty plastic pipe and he was certain that it was
not a break in the line.
Thereafter, claimants attempted to reestablish water from the
existing well by extending it deeper. Claimants hired an
individual to drill to a deeper level in an attempt to establish
water. However, claimants were unable to reestablish water and
after one week of drilling they decided it was impractical to
continue this effort and chose a different location to drill a new
well. Claimants had a new well drilled in late February or early
March 1999. During the time that claimants did not have the use of
their well, they purchased a 1800-gallon water tank to transfer the
water into their system for use by themselves and their aunt and
uncle until water from the new well was available.
It is claimants' contention that respondent negligently
conducted the drilling of core borings during its widening project
of Route 2 near their home. Claimants contend that the core boring
project was the proximate cause of the loss of the water flow from
their well. As a result of respondent's alleged negligence,
claimants seek an award in the amount of $11,030.01, plus
interest, which represents the cost of providing water while the
new well was being dug, the cost of the new well, the cost of
attempting to rehabilitate the old well, and landscaping for their
Claimant David Velegol testified that he is a licensed
professional engineer and that he has worked in the field of
engineering for 38 years. Mr. Velegol has a masters degree in
mechanical engineering and has specialized in the area of "fluid
flow and heat transfer". Mr. Velegol's theory as to the cause of
the loss of his well water is that during the drilling of the core
borings, the drilling ruptured a major underground artery in the
aquifer that was supplying water to his home.
Respondent's position is that the project for drilling core
borings did not cause or contribute to the damage to the claimants'
well in any manner.
Robert L. Dodson, III, was employed by HDR Engineering as the
project geotechnical engineer for respondent's core boring project which is at issue in this claim. Mr. Dodson testified that there
were a total of twenty three core drillings performed. Borings one
through twelve were performed on the south side of the valley.
Borings thirteen through twenty-one were performed north of the
valley. There were two supplemental holes drilled on each side of
the valley in the same vicinity as the others. The closest core
boring hole to claimants' property was hole number sixteen which
was 640 feet away from claimants' well. Core boring hole number
fifteen was 710 feet away from the well. The equipment used in
drilling the borings consisted of "track and rubber tire mounted
drill rigs" that were described as looking similar to all-terrain
vehicles and approximately the size of a pick-up truck. Mr. Dodson
testified that the drilling machine that punched holes into rock
surface was approximately three inches in diameter. The drilling
machine used to punch holes into the soil was approximately six to
eight inches in diameter.
According to Mr. Dodson, the core borings showed the makeup of
the strata below the surface of the ground. The strata near the
location of the claimants' well consisted of approximately ten to
twenty feet of soil, minor layers of bedded shale and sandstone,
then a major unit of sandstone 90 to 110 feet thick. Finally,
there is a sequence of shales and claystone. The major unit of
sandstone which is 90 to 100 feet thick is referred to as the
Morgantown Grafton sandstone. Mr. Dodson stated that sandstone is
considered to be a good water-bearing formation, and it is from
this unit that most of the wells in the area including the
claimants get their water. Mr. Dodson also testified that the
Morgantown Grafton sandstone is the aquifer for the entire area.
In response to the claimants' initial complaint of the loss of
water flow from the well, the respondent sent Mr. Dodson to
investigate the claimants' well and determine if the core borings
were the proximate cause of the loss of water flow from claimants'
well. As a result of this investigation, the respondent reached a
conclusion by approximately January 28, 1999 that "while possible,
it's not probable that any of the core borings affected the water
level or quality in the Velegol well." Mr. Dodson testified that
since then he has obtained more information and it is now his
professional opinion that it is "highly unlikely" that any of the
core borings affected the water level or quality of the Velegol
well. Mr. Dodson also testified that during his investigation he
discovered that there are two homes with wells that are just a few
hundred feet from the core borings and that none of the residents
had any trouble with their wells.
Mr. Dodson conducted investigations in the late summer of 1999
and in November of 1999 regarding the causation of the loss of the
claimants' well water. This "well study" report was prepared by
Mr. Dodson for the respondent in May of 2000. It compared and
contrasted the water production of claimants' "old" well that was
allegedly damaged and the new well that they were forced to drill. The "old" well had a yield of 7.73 gallons of water per minute with
a five gallon per minute pump while the yield from the new well was
11.5 gallons of water per minute The water quality test showed
that the "old" well had 5x the level of iron in it as did
claimants' second well. Mr. Dodson stated that he attributed this
to the rust on the casing of the old well, whereas the new well did
not have the same problem. However, according to this test, the
hardness of the water from the new well was much worse than the old
well. The old well had 218 milligrams per liter of hardness while
the new well had 429 milligrams per liter of hardness. Mr. Dodson
concluded from this study that the old well had fully regenerated
itself by November of 1999.
As the parties in this claim are aware, the Court referred
this claim to a consultant, Dr. Mark A. Widdowson, Ph.D., P.E. Dr.
Widdowson is an Associate Professor of Civil Engineering at
Virginia Polytechnic Institute and State University. He
specializes in the area of hydrology and he was the Program
Coordinator for the Hydrosystems Graduate Program from 1999-2001.
Dr. Widdowson was asked to render his expert opinion in the field
of hydrology regarding the facts of this claim. After reviewing
the pleadings, the exhibits, and the transcript in this claim, Dr.
Widdowson rendered his expert opinion to the Court by
teleconference and by a short written summary.
It is his opinion that neither party established a compelling
technical explanation for the temporary failure of claimants' well.
He reviewed the rainfall records for the entire year of 1999 and
determined that January1999 was one of the wettest years on record.
There were drought conditions during the summer of 1999. However,
the rainfall for November of 1999 was near or above average.
Therefore, he concluded that it is highly unlikely that the
drought contributed to the problem. Dr. Widdowson also stated that
given the specifications and condition of the claimants' well as
determined by the respondent's investigation conducted in November
1999, it is not probable that the respondent's core borings caused
the rate of water production from the well to substantially decline
on and around January 23, 1999. Dr. Widdowson indicates that due
to the respondent's inadequate hydrogeologic investigation, the
effect of the core borings on the flow of water from claimants'
well is uncertain, and the possibility of a negative effect should
not be ruled out.
However, Dr. Widdowson also concludes that due to the lack of
information about the condition of the water table on and around
January 23, 1999, the date that claimants' well stopped producing
water, there is no way to determine the specific cause of the
failure of claimants' well.
In all claims it is the burden of the claimant to establish by
a preponderance of the evidence that the respondent acted
negligently and that the alleged negligence was the cause of the
damage to property of the claimant. In the instant claim, the
claimants bear the burden of proving that respondent was negligent in drilling the core borings, and, further, that such negligence
was the proximate cause of the temporary loss of water flow from
their well. Absent specific evidence that the proximate cause of
the damage to claimants' well was the core boring project, the
Court is constrained to deny the claim. Stephenson v. Division of
Highways 22 Ct. Cl. 98 (1998). If the claimant does not establish
the proximate cause of the damages then the Court is left to
speculate as to the cause. This Court has consistently held that
an award cannot be based on speculation. Mooney v. Department of
Highways 16 Ct. Cl. 84 (1986); Phares v. Division of Highways 21
Ct. Cl. 92 (1996).
After a thorough review of the evidence and the expert
evidence in this claim, the Court is of the opinion that the
claimants have not established that the temporary loss of water
from their well was the result of any negligence on the part of the
respondent. Although the timing of the loss of the water flow from
the well is suspicious, the claimants did not establish by a
preponderance of the evidence that any specific actions of the
respondent caused this particular loss of water from their well.
The evidence produced did not establish what caused the temporary
loss of the water flow from the well.
Therefore, 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.