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West Virginia Court of Claims

Volume Number: 29
Category(s): DRAINS AND SEWERS
Opinion Issued January 17, 2013
RONALD G. MARKLE
VS.
DIVISION OF HIGHWAYS
(CC-09-0155)
     Claimant appeared pro se.
     Andrew F. Tarr, Attorney at Law, for Respondent.
     MCCARTHY, JUDGE.
      Claimant brought this action for property damage to his residence which he alleges occurred as a result of Respondent’s negligent maintenance of a drainage system along State Route 921 near Wheeling, Ohio County. Claimant asserts that water flows across State Route 921 and onto his property and contends that the water has caused damage to a retaining wall and driveway, and this damage has allowed certain portions of Claimant’s property to slip and accumulate near the entry of his residence. State Route 921 is a public road maintained by Respondent. The Court is of the opinion to award this claim for the reasons more fully stated below.
      The incidents giving rise to this claim occurred repeatedly over a period of a decade. State Route 921 abuts Claimant’s residence and is classified as a Homeowner Access Road Project Road (HARP Road), which is the lowest priority road for the Respondent to maintain. Claimant states that after every substantial rain the water flows down State Route 921 through an inadequate ditch line and crosses over the road and onto his land, and it causes substantial damage to his property. Claimant maintains that the water has caused mud to accumulate near the entrance of his home, and in the winter months, the water causes damage to his driveway due to constant freezing and thawing.
      Claimant notified Respondent on numerous occasions in 2008 concerning the situation, and Respondent made at least two attempts to correct the problem by first installing an eighteen inch, smooth-bore culvert at the upper portion of the road near Claimant’s residence, and secondly, by grading the road so as to slope it away from the Claimant’s residence. However, both Claimant and Respondent testified that this did not solve the problem due to the large volume of water that flows down the hill. It was not until further attempts were made to slope the road in the opposite direction that the problem was actually corrected. Claimant now seeks damages in the amount of $8,000.00 in order to build a new retaining wall and driveway. Claimant does maintain homeowners insurance, however, Claimant’s insurance coverage does not cover the type of damage alleged in this claim.
      This Court has held that Respondent has a duty to provide adequate drainage of surface water on State maintained roads, and drainage devices must be maintained in a reasonable state of repair. Haught v. Dep’t 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 v. Div. of Highways, 21 Ct. Cl. 97 (1996).
      Bryant v. Div. of Highways, 25 Ct. Cl. 235 (2005) involved facts similar to those in the instant case. In Bryant, water flowed onto Claimant’s property not only from State maintained roadways, but also from private property located across the street from Claimant’s property on the hillside. Id. at 237. The Court held as follows:
      Claimants have failed to establish that Respondent maintained the drainage structures on Sidney Street in Raleigh County in a negligent manner. The evidence establishes that water flows onto Claimants’ property not only from the State maintained roadways but also from a private property located across the street from Claimants’ property on the hillside where new construction is ongoing. There are more sources of the water flowing on Sidney Street than just that from the road itself. Consequently, there is no evidence of negligence on the part of Respondent upon which to base an award.
     
      In this case, the situation is distinguishable from Bryant because no third party is causing or contributing to the damage to Claimant’s property. In the hearing in this matter, the State has admitted that it has a duty to maintain the road in question, and also admits that the installation of the culvert did not correct the problem. Claimant notified the Respondent at least four times concerning the damage. Furthermore, Claimant has not contributed to the damage to his property. Based on the foregoing, the Court is of the opinion that the Respondent was negligent in its maintenance of State Route 921, and had actual notice of the condition giving rise to the Claimant’s claim.
      In accordance with the findings of fact and conclusions of law as stated herein, the Court is of the opinion to, and does hereby, made an award in this claim in the amount of $7,306.00. The Court believes that this amount is fair and reasonable compensation in light of the facts presented.
      Award $7,306.00.
Summary:
     


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