Burke v. Department of Highways

Claimant is the owner of property located on Midway Drive, Dunbar, Kanawha County, West Virginia. The land is located at a low point in the road. There is a ditch along the road, and a drainpipe under the road empties in a hollow on claimant’s property. Claimant alleges that his property has been damaged in the amount of $9,000.00 by water flowing out of the ditch and onto the land. Part of this damage occurred in late August 1980, following a period of heavy rain. The rest of the damage has occurred over the course of several years. Claimant alleges the resurfacing of Midway Drive in October 1979 changed the elevation of the road, diverting water onto the land.

Respondent contends that claimant’s property lies in a natural drainage area. It was further alleged that debris placed by claimant in the hollow blocked the outlet end of the pipe causing water to back up into the ditch. Photographs introduced into evidence show old sinks, stoves, hot water heaters, and other debris in the hollow. Claimant stated he had been placing this material there for “a great number of years” to slow erosion in the hollow.

The evidence presented indicated that claimant’s property is located in a natural drainage area. Much of the damage occurred after a heavy rain, when the water followed its natural course onto claimant’s land after the ditch line back-up. The evidence does not support a finding that the elevation of the road, even if performed in a negligent manner, was the proximate cause of the damage. Wotring vs. Dept. of Highways, 12 Ct. Cl. 162 (1978).

Claim disallowed.