Webb v. State Tax Commissioner

7 Ct. Cl. 92

• Court: West Virginia Court of Claims
• Decided: May 16, 1968
• Docket: No. C-22
• Status: Published

Opinion

Jones, Judge:

This claim was filed before the Attorney General on May 5, 1967.

At the hearing held by this Court on March 21, 1968, the claimant and her husband, Rudolph H. Webb, appeared in person, and were not represented by counsel.

The claimant in this case claims damages to the residence owned by the claimant and her husband situate at 2605 Roosevelt Avenue, St. Albans, West Virginia, alleged to have been caused by shock and vibrations originated by heavy trucks traveling over United States Route No. 60, which parallels Roosevelt Avenue approximately 180 feet north thereof. The claimant alleges that the vibrations emanated from a defective section of the concrete highway which had been patched on several occasions with asphalt, which in turn deteriorated and was rough and bumpy. The claimant’s residence is approximately seventeen years old and is one of several houses built at or near the same time as a Naval Ordinance project in a subdivision known as Ordinance Park. The claimant testified that the vibrations were so severe that plates were knocked off of the walls, nails were loosened and the walls of the house were cracked. The claimant testified that she had already spent $305.42 for repairs and that the lowest of two estimates for the entire repair job was $900.00. Only the claimant and her husband testified in support of the petition; and there was no valid evidence that any of the several houses located nearby were similarly damaged.

The respondent State Road Commission produced three employees of the Safety And Claims Division of the State Road Commission, all of whom visited the premises and were present when large trucks passed thereby. None of them felt any vibration although one of the State witnesses testified that he noted “some rattle to the windows of the kitchen”.

John W. Webb, Geologist for the State Road Commission, testified that the house was built several feet above bedrock and that the damages alleged to have been sustained might have been caused by subsidence attributable to an unstable foundation and the seasonal fluctuation of the water table.

During the investigation of this claim, the respondent proposed that a seismograph reading of the alleged vibrations be taken on the premises. This was first agreed to by the claimant but before the seismograph could be installed the claimant changed her mind and informed the respondent that the reading could not be taken.

It is common knowledge that heavy trucks cause some vibrations as they pass along our highways; but upon consideration of all the evidence adduced in this case, the Court finds that the deterioration of the claimant’s residence has not been sufficiently connected with any negligent act or failure to act on the part of the respondent, and that the claimant has failed to prove her claim by a preponderance of the evidence. Therefore, it is our judgment that this claim should be and it is hereby disallowed.