Cole v. Division of Highways

22 Ct. Cl. 143

• Court: West Virginia Court of Claims
• Decided: December 9, 1998
• Docket: CC-97-459
• Status: Published

Opinion

PER CURIAM:

The claimant brought this action for water damage to her property which she alleges occurred as a result of a culvert maintained by the respondent in Harrison County.

The claimant owns a home on Turkey Run (Route 50/2), approximately one half mile from US Route 50 near Salem. Route 50/2 in this area is a narrow paved road that is secondary in terms of maintenance priority. The claimant’s property consists of a house and a number of outbuildings. A private dirt road runs between the claimant’s main residence and a garage, back towards the rear of the property. During wet weather, a creek runs down from the rear of the property, across a creek crossing in the private road, under a foot bridge, and through the respondent’s culvert which crosses under Route 50/2.

On or about May 17, 1996, Harrison County experienced heavy rainfall and widespread flooding. It was the claimant’s position that the culvert under Route 50/2 was not large enough to handle the amount of water, and caused the flood water to wash out the asphalt drive of her garage. The claimant submitted a paving estimate of $2,300.00. The claimant had no flood insurance.

The culvert in question was a 24-inch pipe at the time of this flood. Under normal circumstances, the claimant’s creek crossing channeled water down towards the respondent’s culvert. The respondent’s evidence indicated that water running across Route 50/2 during this flood was quite deep, indicating severe flood conditions. The respondent’s position was that the water took the path of least resistance and overflowed the creek crossing in the claimant’s dirt road above the culvert, and therefore washed out the drive immediately below.

The Court, after careful review of the evidence, is of the opinion that the damage to the claimant’s property occurred from a combination of circumstances, including the lay of the land and the watershed behind the claimant’s home, the location of the creek crossing and the extremely heavy rainfall which occurred at the time in question. While not unsympathetic to the claimant’s situation, the Court is of the opinion that there is insufficient evidence of negligence on the part of the respondent upon which to justify an award. Therefore, the Court does hereby deny the claim.

Claim disallowed.