Kay v. Department of Natural Resources

West Virginia Court of Claims

Kay v. Department of Natural Resources

14 Ct. Cl. 270

CourtWest Virginia Court of Claims

DecidedDecember 1, 1982

DocketCC-80-146

StatusPublished

This text of 14 Ct. Cl. 270 (Kay v. Department of Natural Resources) is published on Counsel Stack Legal Research, covering West Virginia Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kay v. Department of Natural Resources, 14 Ct. Cl. 270 (W. Va. Super. Ct. 1982).

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Opinion

GARDEN, JUDGE:

Claimants filed this claim to recover damages occasioned by actions of employees of the respondent when they released certain Canada geese near claimants’ farm located in Mason County, West Virginia. The geese came upon claimants’ property and ate sorghum and corn plants resulting in damage of $3,800.00.

The respondent obtained the Canada geese from the State of New York and released them in an attempt to re-establish a native wildlife population of Canada geese in West Virginia. The Canada geese were released at two points on the Kanawha River on June 24, 1979. In early June, 1979, the claimants had planted corn and sorghum on 19 acres of their farm in the area next to the Kanawha River where it joins Pond Branch Creek. In early July, 1979, when the plants were about knee high, claimants noticed numerous geese in the field, at which time claimants contacted their uncle, who in turn notified the respondent of the problem. Employees of the respondent attempted to scare the geese off claimants’ property by shooting over the heads of the geese, but to no avail.

The geese continued to be a problem to the claimants until fall 1979 when the crops were harvested.

Respondent’s witness, Thomas Lee Dotson, a District Wildlife Biologist for the respondent, testified that 91 Canada geese were released at one point on the Kanawha River, and 104 more were released at another point to go “wherever they wanted to go.”

[271]*271The Court finds that the respondent released the Canada geese without regard to the propensity of geese to feed upon sorghum. It was foreseeable that the Canada geese would seek the nearest food supply, which happened to be available in claimants’ field. It is the opinion of the Court that the respondent was negligent in releasing the Canada geese in proximity to claimants’ property, and the Court makes an award to the claimants in the amount of $3,800.00.

Award of $3,800.00.

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GARDEN, JUDGE:

Claimants filed this claim to recover damages occasioned by actions of employees of the respondent when they released certain Canada geese near claimants’ farm located in Mason County, West Virginia. The geese came upon claimants’ property and ate sorghum and corn plants resulting in damage of $3,800.00.

The respondent obtained the Canada geese from the State of New York and released them in an attempt to re-establish a native wildlife population of Canada geese in West Virginia. The Canada geese were released at two points on the Kanawha River on June 24, 1979. In early June, 1979, the claimants had planted corn and sorghum on 19 acres of their farm in the area next to the Kanawha River where it joins Pond Branch Creek. In early July, 1979, when the plants were about knee high, claimants noticed numerous geese in the field, at which time claimants contacted their uncle, who in turn notified the respondent of the problem. Employees of the respondent attempted to scare the geese off claimants’ property by shooting over the heads of the geese, but to no avail.

The geese continued to be a problem to the claimants until fall 1979 when the crops were harvested.

Respondent’s witness, Thomas Lee Dotson, a District Wildlife Biologist for the respondent, testified that 91 Canada geese were released at one point on the Kanawha River, and 104 more were released at another point to go “wherever they wanted to go.”

[271]*271The Court finds that the respondent released the Canada geese without regard to the propensity of geese to feed upon sorghum. It was foreseeable that the Canada geese would seek the nearest food supply, which happened to be available in claimants’ field. It is the opinion of the Court that the respondent was negligent in releasing the Canada geese in proximity to claimants’ property, and the Court makes an award to the claimants in the amount of $3,800.00.

Award of $3,800.00.

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Bluebook (online)

14 Ct. Cl. 270, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kay-v-department-of-natural-resources-wvctcl-1982.