Philpot v. Department of Highways

14 Ct. Cl. 181

• Court: West Virginia Court of Claims
• Decided: July 2, 1982
• Docket: CC-82-47
• Status: Published

Opinion

PER CURIAM:

Claimant Richard T. Philpot is a resident of Dairy Road in Poca, West Virginia. Mr. Philpot filed this claim for damages to his driveway caused by water run-off in the drainage ditch which flows on both sides of the driveway. This ditch line located on Dairy Road is owned and maintained by the respondent.

During 1977, Dairy Road was resurfaced. At that time, Mr. Philpot experienced problems with water flowing over the driveway instead of through the culvert under the driveway.

Claimant’s residence was constructed in 1976. During the construction, the contractor placed a culvert under the driveway and a steel grate at the end of the driveway over a concrete box culvert. Mr. Philpot experienced no water or erosion problems until Dairy Road was resurfaced and rock placed in the ditch lines in front of his residence. Claimant informed the respondent of these problems, and the respondent removed some of the rocks from the ditch line. Since that time, Mr. Philpot has experienced water and erosion problems with his driveway during heavy rains. No estimate for the cost of repairing the driveway or the steel grate over the box culvert were submitted by the claimant.

Kenneth W. Rumbaugh, a District One Maintenance Assistant for the respondent, testified that he had inspected the claimant’s property in response to a complaint from him. Mr. Rumbaugh explained that the ditch of dump rock was placed by the respondent to prevent erosion and to slow down the flow of water in order to minimize any damage that the water itself might cause. He also testified that a permit from the respondent is necessary for any construction upon the right of way of the respondent. The permit requires “that whatever construction, whether it be a driveway or a drainage facility or ánything else — whatever is being constructed is required to be constructed and maintained by the property owner.”

From the record, the Court cannot conclude that the damage to claimant’s driveway was due to any negligence on the part of the respondent. In fact, the respondent has maintained the ditch line in the usual and customary manner for hillside residential areas. As it is the responsibility of the property owner to maintain driveways constructed upon the rights of way of the respondent, the Court is of the opinion to and does hereby disallow this claim.

Claim disallowed.