Charbeneau v. Department of Highways

The claimants, Eleanor F. Charbeneau & Eleanor B. Char-beneau, mother and daughter, are the joint owners of a farm located in the rural area of Marshall County. The property *68was subjected to heavy snowfalls during January and February of 1977, to the extent that the State-maintained road which bisected their farm became unpassable. One day early in February, the claimants observed a bulldozer attempting to plow the road, and the man who was operating the bulldozer came to their home to inquire about the condition of other roads in the area. During the conversation that ensued, the claimants received the definite impression that he was employed by respondent.

Later the same day while walking out to the road to pick up their mail, the claimants observed that the bulldozer had driven off the right-of-way and onto their property, and, in so doing, had destroyed 227 feet of fencing, a 16-foot gate, and 30 fence posts. They presented an estimate in the amount of $253.45 for the repair of the damage. They also testified that as a result of the damage, they were unable to rent a portion of the farm to third parties for pasturing purposes, and thus lost income. They testified that they were not seeking recovery of this loss, but were seeking only sufficient funds to enable them to restore the fence line. Moreover, their testimony relating to the loss of income was too speculative to support an award for this item of damage.

Arnold Rush, a foreman of respondent in the Marshall County area, testified that respondent had hired Mountaineer Excavation of Moundsville to assist respondent in bulldozing roads, and that, while he couldn’t be sure, he was of the opinion that Mountaineer Excavation equipment did work in the area of the claimants’ property.

Under these facts, we are of the opinion that the claimants are entitled to an award in accordance with the Court’s opinion in the recently decided claim of Hubbs v. Dept. of Highways, Claim No. CC-77-83, and an award is thus made to claimants in the amount of $253.45.

Award of $253.45.