McLaughlin ex rel. McLaughlin v. Department of Highways

Due to the fact that these three claims arose, at least in part, from the same alleged misconduct, they were consolidated for hearing.

In order to relocate County Route 33 at Bendale, which is two miles south of Weston, in Lewis County, West Virginia, the respondent made a cut approximately 70 feet deep through a hill. That work was done in the first six months of 1977 and required blasting for removal of rock. The properties of the claimants all front on that road near the cut and not far from the West Fork River. The claimant Skinner alleges that his property was damaged by the blasting. That will be considered further.

All three claimants allege that their properties were damaged on January 28, 1978, by West Fork River flood waters which they claim would not have reached them had the cut not been made. The evidence fails completely to support that allegation, and, for that reason, it cannot be considered further.

The blasting involved in this case was the same blasting involved in Heater v. Department of Highways, 12 Ct.Cl. 310 (1978), and, of *388course, the same absolute liability for damages proximately caused by it obtains. The respondent concedes that the last shot detonated caused a rock to be thrown through the roof of Mr. Skinner’s store, but it also is undisputed that the Department of Highways repaired the roof. Mr. Skinner testified, without contradiction, as to other damages and their cost of repair, estimated by him to be $3,000.00. In addition, he claims damages for alleged loss of profits in the operation of his store, but such evidence as there is on that subject is so uncertain that it cannot provide the basis of an award.

Accordingly, Claim No. CC-79-143 is disallowd, Claim No. CC-79-114 is disallowed, and, in Claim No. CC-79-27, an award of $3,000.00 is made.

Award of $3,000.00 to James R. Skinner, d/b/a Jim’s Grocery.

Claim No. CC-79-143 is disallowed.

Claim No. CC-79-114 is disallowed.