Pitsenbarger v. Department of Highways

13 Ct. Cl. 35

• Court: West Virginia Court of Claims
• Decided: September 20, 1979
• Docket: CC-77-222
• Status: Published

Opinion

RULEY, JUDGE:

Claimants allege that their property was damaged by the pooling of water caused by respondent’s negligent placement of a culvert under, and care of drainage along, a public roadway adjacent to claimants’ property. The evidence indicates that part of the claimants’ property is a natural drain; that the property has been swampy for at least a decade; and that nearby landowners had taken measures to drain their property which may have increased the flow of water to claimants’ property. No evidence of negligent placement or care of the culvert came forth. “The State can only be held on the duty of exercising reasonable care and diligence in the maintenance of its highways. Under the law of this State, surface water is considered a common enemy which each landowner must fight off as best he can, provided that an owner of higher ground may not inflict injury to the owner of lower ground beyond what is reasonably necessary.” Holdren v. Dept. of Highways, 11 Ct.Cl. 75 (1975). The State has taken necessary and reasonable steps to deal with difficult drainage problems near claimants’ property; there is no evidence before this Court which leads to a conclusion that the State was negligent or caused any damage to claimants’ property.

Claim disallowed.