Claimant, Clearsie Hannas, of Romney, West Virginia, seeks reimbursement in the sum of $700.00 as damages for the loss of *7certain livestock occasioned by their eating poisonous lead paint and red lead which had been spilled and left in open buckets upon unfenced property adjacent to or encircled by the pasture field of the claimant through the negligence of employees of the state department of public safety on April 24. 1950.
In October 1946 respondent had leased for ninety-nine years, for the construction and maintenance of a remote radio control tower and station, a one-acre parcel of ground surrounded by-land owned by the plaintiff who used the same for the pasture of livestock. According to the terms of the lease, a copy of which was filed as exhibit A. respondent was to erect and maintain a permanent fence to enclose the said one-acre parcel of ground. No fence was erected, and thus the cattle belonging to claimant had access to the poisonous paint left on the ground at the base of the tower and to open used buckets of paint strewn about near the tower.
The deposition of T. E. Haines, a Hampshire county stock raiser experienced in treating sick cattle, states that he was present w-ith veterinarians from Romney-. West Virginia, and Winchester, Virginia, when they examined the sick cattle and came to the conclusion that they had symptoms of poisoning. Shortly thereafter four of the cattle died and said T. E. Haines was present when Sgt. K. V. Shanholtzer, chemist for the state department of public safety, examined contents of the dead cattle’s stomachs and after appropriate chemical analysis, decided that the cattle died as the result of poisoning.
Depositions of T. E. Haines, Daniel T. Williams and R. L. Baker, competent appraisers, stated that they concurred in the following values for the cattle which died as the result of eating the poisonous paint:
One bull, about thirteen months old.$250.00
One heifer, about seventeen months old.... 175.00
One heifer, about thirteen months old. 125.00
One heifer, about twelve months old . 150.00
Total . .$700.00
*8This claim was originally filed on September 25, 1950, for consideration under the regular procedure, but, after a thorough investigation by the state department of public safety, it was submitted by respondent, with a record of all the facts and circumstances in the case, as a shortened procedure claim under the provisions of the state court of claims act.
The state department of public safety having concurred in this claim and recommended an award of $700.00, and the attorney general having approved the claim as one that should be paid, this court hereby makes an award and recommends the payment of seven hundred dollars ($700.00) to the claimant, Clearsie Hannas.