Miller v. Department of Highways

8 Ct. Cl. 191

• Court: West Virginia Court of Claims
• Decided: January 19, 1971
• Docket: No. D-286
• Status: Published

Opinion

JONES, JUDGE:

From the record in this case it appears that the claimants, Everett Miller and Betty Miller, operate a small utility under the name Betty Gas Company for the service of customers in the vicinity of Brenton in Wyoming County. They purchase gas from Consolidated Gas Supply Corporation and transport the same through a plastic pipeline along a private right-of-way leased by them from Georgia-Pacific Corporation. This claim is for damages in the amount of $936.25. for the loss of gas from the claimants’ pipeline which the claimants allege resulted from the negligent puncturing of the pipeline by the respondent. A public highway runs parallel to the pipeline and the claimants allege that employees of the respondent carelessly dumped dirt and rock from the highway upon the pipeline right-of-way and that a large boulder weighing approximately 700 pounds came to rest on the pipeline, which was buried approximately 18 inches deep. A sharp corner of the boulder had cut through the earth cover and into the plastic pipe allowing gas to escape.

The loss of gas was discovered by the claimants when they received their bill from Consolidated Gas Supply Corporation for the month of October 1969. The bill was for $882.11 and they had charged their customers $293.06 for the gas used, showing a deficit of $589.05. For the month of November the Gas Company’s bill for gas was $912.46 for which the claimants charged their customers $565.26, a deficit of $347.20, and a total loss for the two months of $936.25. When the October bill arrived about the middle of November the claimant Everett Miller walked the pipeline and discovered the puncture. He testified that the respondent’s employees had on several occasions dumped dirt and rock onto the slope in question and that he had notified them of the existence of his pipeline and had warned them not to damage it. This claimant specifically recalled and testified that the respondent’s employees dumped large rocks at the place in question on or about October 16, 1969, and considering all of the facts and circumstances adduced in testimony it appears that the pipeline was damaged at that time.

There was no testimony taken on behalf of the respondent and therefore the claimants should be entitled to recover if they have made a prima facie case. We are of opinion that the claimants have made such a case and that the same would go to a jury in a court of law. There being no defense, we are of opinion that the claimants are entitled to recover and the amount of the loss being well established and not being questioned by the State, we do hereby award to the claimants, Everett Miller and Betty Miller, the sum of $936.25.