Marcum v. Department of Highways

RULEY, JUDGE:

The claimants were the owners of a house situated on Secón-dary Route 5/5, Dempsey Branch, Logan County, West Virginia. Route 5/5 is a dirt road. During a flood, approximately 500 feet of the road was washed away. The date of the flood was not clearly established, although Mrs. Marcum thought it might have occurred in the summer of 1977. In the spring of 1978, the respondent performed repair work on Route 5/5 which involved elevating the level of the road. As a result, the road, which had been level with or below the level of the claimants’ property, was at least four inches above it. The claimants allege that the respondent was negligent in its repair work, and has caused water to pool on their property, resulting in damages of $25,000.00.

The evidence established that prior to the repair work, the claimants had not encountered any water problems on their property. Since the repair work, water has not drained from their land, but pooled on it for up to three or four days after a rainstorm. The floors of the house have rotted, and furniture and clothing are damaged from mildew.

It is not clear whether the water, which has collected on the land, is due to run-off from the road’s surface or from the hillside behind the property. In either case, it is clear that the elevation of Route 5/5 has altered the prior drainage at claimants’ location, and that the respondent has negligently failed to provide adequate drainage. The Court concludes that respondent’s action is the proximate cause of claimants’ damages, and makes an award in their favor. See White v. Dept. of Highways, 12 Ct.Cl. 271 (1979); Ferguson v. Dept. of Highways, 13 Ct.Cl. 103 (1980). The parties have stipulated that damage to personal property amounted to $3,299.00. A real estate appraisal estimated the diminution of value of the real property at $7,500.00. The Court, therefore, makes an award of $10,799.00.

Award of $10,799.00.