Linville v. Department of Highways

During 1978 and 1979, the claimant’s property on Buffalo *409Creek at Amherstdale in Logan County was flooded several times. These floods caused erosion of topsoil and damage to claimant’s fence and concrete walkway. Claimant presented no written estimate of the cost of these damages, but estimated herself that repairs would cost $3,500.00. She alleges that the flooding of her property was in some way related to Highway Project ER 277, which involved altering the channel of Buffalo Creek and constructing a new bridge near her property. However, the claimant also testified that her home was in a low area where water often backed up after a heavy rain.

Dallas Cary, Project Supervisor for Project ER 277, testified that the project increased the flow capacity of Buffalo Creek in the area of the claimant’s property, and that he believed claimant’s flooding problems might be due to surface run-off from the area behind her property. He further testified that the water table was very high in that area.

Joe Scarbury, an inspector on Project ER 277, testified that he inspected the area several times in response to claimant’s complaints of flooding, but found no water overflowing the creek banks. However, he did observe water percolating up through claimant’s yard, which he said was the lowest spot in the area.

Testimony failed to establish negligence on the part of the respondent. In fact, it was never established that the flood-waters on claimant’s property came from Buffalo Creek, and it seems likely that other factors, such as a high water table and a low elevation, were the cause of claimant’s flooding problems. Therefore, the Court is of the opinion that the claimant has not shown that the damages claimed were the result of actionable negligence on the part of the respondent, and hereby disallows the claim.

Claim disallowed.