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West Virginia Legislative Claims Commission

Volume Number: 30
Category(s): DRAINS AND SEWERS
Opinion Issued June 15, 2015
BRADLEY GENE QUERRY AND MARY BETH QUERRY
VS.
DIVISION OF HIGHWAYS
(CC-13-0509)
     Claimant Bradley Querry appeared pro se.
     C. Brian Matko, Attorney at Law, for Respondent.
     PER CURIAM:
      Claimants brought this action for property damage to their residence, which they allege occurred as a result of rain water flowing from a drainage pipe under Crimson Oak Drive and emptying onto Claimants’ property. Claimants’ residence is located at 45 Crimson Oak Drive, Sissonville, Kanawha County. Claimants assert that water collects in a State-owned ditch on the opposite side of Crimson Oak Drive, flows into a pipe located under the road, and reaches Claimants’ yard underground where the pipe ends at the edge of the road. Claimants contend that the water builds up and reaches the surface of their property, flooding the yard, and as a result, portions of the yard are sinking. Crimson Oak Drive is a public road maintained by Respondent. The Court is of the opinion to deny the claim for the reasons more fully stated below.
      Claimant Bradley Querry testified that he and his wife, Claimant Mary Beth Querry, purchased their home and approximately one acre of land in 2001, and subsequently purchased an adjoining lot behind the home. Claimants were the third owners of the home, which displayed no problems upon inspection at the time of purchase. However, a few years after they moved in, Claimants began to notice holes and flooding in their yard following heavy rains. Claimant Bradley Querry testified that the yard itself began to sink in some areas. Upon speaking to neighbors about the problem, Claimant was advised that a drainage system had been installed by the first owner, who had developed the property in approximately 1990. The system consists of a concrete drain line opening at a ditch on the opposite side of Crimson Oak Drive, which runs adjacent to Claimants’ yard. Water entering the pipe then flows under the road and reaches Claimant’s yard underground, where the pipe ends. Claimant asserts that the water has caused the holes, flooding, and sinking of his yard over the past several years.
     Claimant testified that he had learned the original owner and developer had unsuccessfully attempted to fill the pipe several years prior to Claimants’ purchase, but that Claimant had no indication of any drainage problems or attempted repairs until he encountered the flooding himself. Claimant also testified that he is aware Crimson Oak Drive had been acquired by the State through the Homeowner Access Road Project (HARP), and that when he first contacted Respondent about the drainage issues in approximately 2010, he was informed that the problems were not Respondent’s responsibility to maintain, and that Claimant was prohibited from attaching a pipe to divert water from the pipe under the HARP road without obtaining a permit. Claimant did install a catch basin in 2009 to reduce runoff from his yard onto the neighbor’s property; however, the flooding, holes and sinking have persisted and worsened over the years of Claimants’ ownership.
     John Shannon, owner of J&J Services, an excavation company, testified as Claimants’ expert witness. Mr. Shannon stated that the only way to correct the drainage issue on Claimants’ property would be to attach a pipe to the existing pipe to divert the water to a proper drainage area. He testified that the land development was poorly planned, both in the unfinished ditch line and in that the incorrect size culvert was placed during the original construction, and it would have been the original property owner’s responsibility to “tie off” the driveway for proper drainage at that time. Mr. Shannon further testified that he has performed drainage correction work on several properties in the subdivision surrounding Claimants’ home.
      Claimant Bradley Querry asserts that he is not requesting payment for damages to his property, nor that Respondent repair the holes and sinking ground, but is asking that Respondent repair the problem by properly draining the water or removing the existing pipe from under the road. Claimant procured an estimate from Mr. Shannon of approximately $16,000.00, which cost would include installation of a manhole on Claimants’ property, placement of 205 feet of ditch line from the culvert to the manhole, and filling and seeding the property.
      Respondent contends that the water drainage problems were caused by the drainage system that was put in place when the properties were developed, prior to the State’s acquisition of Crimson Oak Drive; therefore, due to the nature and classification of the road, Respondent is not responsible for damages resulting from the faulty pipe system or for correcting the problem. Testifying as Respondent’s expert was Michael Welch, a crew supervisor for Respondent whose station is responsible for maintenance of the Sissonville area. Mr. Welch testified that Crimson Oak Drive is indeed a HARP road, and was brought into the State road system by an order issued on October 23, 2000, by Respondent’s Commissioner. Respondent has a duty to maintain HARP roads in the condition they were in at the time of acquisition, without upgrading or making improvements to the roads. Mr. Welch stated that Respondent had performed ordinary maintenance on the State-owned culvert, but he was unaware of many of the drainage issues in Claimants’ yard since it is private property. Mr. Welch confirmed that the culvert was an open end, and that the “exhaust” end of the pipe was underground on Claimants’ property. Mr. Welch also stated that private citizens are prohibited from attaching connections and pipe to a State-owned pipe, but that he was unaware of the permit process for granting this ability.
      This 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 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.
      As in Bryant, the Court in the instant case finds that the drainage problems were caused by the actions of a third party – that is, the original property owner and developer who installed the unfinished drainage system – and not by Respondent. The evidence established that the developer placed the ditch line to flow from the culvert, under Crimson Oak Drive, and to the edge of Claimants’ property, where the line simply ended. No diversion or other drainage mechanisms were put in place to prevent water from flowing directly under the surface of Claimants’ yard. Eventually, the water built up underground and broke through the surface, causing holes and flooding in the yard, as well as erosion and sinking of the ground itself.
     The Court notes that the development and placement of the pipe was done prior to the State’s acquisition of Crimson Oak Drive through HARP in 2000, and per the statute and regulations, Respondent is permitted to perform only ordinary maintenance on the road; it may not upgrade or improve the road. The evidence in this case establishes that ordinary maintenance has indeed been performed on the road and culvert, and the Court finds that Respondent is limited as to other actions it may take on or near the road, including work on drainage pipes or on private property. The Court cannot hold Respondent liable when the original property developer created the water problems by poorly planning the drainage system, running a ditch line under the road, and failing to complete the drain line by diverting water flow from the edge of Claimants’ property. The evidence shows that the adverse condition was present when Claimants purchased the property, and Respondent is limited in its ability to remedy the situation due to the classification of the road. Thus, 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, the Court is of the opinion to and does deny this claim.
      Claim disallowed.
     
     *The Court notes that at the Court’s request, counsel for Respondent contacted the appropriate Respondent district regarding the possibility of Claimants obtaining a permit to attach a new drain pipe to the existing pipe under Crimson Oak Drive. Counsel was informed that the district did not anticipate any issue in granting Claimants such a permit, provided that certain requirements of connection and type of pipe are met. Claimants were advised by letter of the contact information necessary to apply for a permit.
Summary:
     


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