McKinley v. Department of Highways

The claimants seek $200.00 to resurvey their property in order to replace two pipe and angle iron survey markers, the tops of which were bent by respondent’s brush hog. Mr. McKinley testified that on February 27, 1981, respondent was mowing brush along U.S. Route 35, in Henderson, Mason County, West Virginia. He stated that he “heard one happen and I looked out the window and I saw the other one happen.” He added that the markers stood approximately 6 inches above the surface of the ground and alleged that they should have been visible to the mower operator. The two markers had been placed upon survey in 1975, and he had later placed concrete around the base of each. These markers were not uprooted, but bent over, and Mr. McKinley contended that this destroyed the accuracy. The bases of the markers were still in the concrete, and he was not sure whether the concrete had been moved.

The damaged markers had not been examined by a surveyor. Mr. McKinley simply presented an estimate of cost sent to him by a survey company following a telephone call. No testimony was adduced from any qualified witness to satisfy the Court that the integrity of the survey or markers was compromised by the tops of the markers being bent over, nor of the actual expense or costs which may necessarily be incurred to restore integrity and/or to replace the markers. The Court cannot speculate, and the claim must be denied.

Claim disallowed.