OPINION ISSUED NOVEMBER 25, 1987
GEORGE R. MAXEY AND SHIRLEY MAXEY
DEPARTMENT OF HIGHWAYS
Claimants appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
The claimants filed this claim in the amount of $546.92 for water
damage to property located
in McArthur, Raleigh Count, for a period commencing in July, 1983.
Claimants' property is
approximately 300 feet southwest of Route 16, which is a State
maintained highway. Claimants
allege negligence on the part of respondent for faulty engineering
the construction of the
interchange at McArthur with the Interstate 77, also known as the
Claimant George Maxey testified that on July 22, 1986, there was
heavy storm and water
entered the yard and a storage building. Several items, including
tent, were damaged. The
value of these items was estimated to be $199.96.
During construction of the McArthur Interchange of I-77, the
widened I-77 from
two lanes to four lanes. A tunnel was constructed under the highway
adjacent to claimant's
property. Claimants experienced excess water on their property
this construction. Mr.
Maxey stated that water flows into a mine break. This creates a
situation of excess water flowing
onto claimants' property.
Thereafter, respondent constructed a ditch from the point where
culvert comes out to the
mine break. In August, 1986, respondent also constructed a retaining dam
with rocks in an
attempt to keep the silt and mud from entering the mine.
Mr. Michael R. Ward, an engineer in Raleigh County for respondent,
testified that he is familiar
with the specific highway project which is the subject matter of
claim. The West Virginia
Turnpike was upgraded from a two-lane highway to a four-lane
Prior to and following
this project, the water was discharged into an abandoned mine. The
size pipe was used
both before and after the project. He stated that here would be a
negligible increase in the flow
of water onto the claimants property due to another 18-inch pipe
installed in the area.
Claimants cannot recover for damages which occurred prior to
3, 1984. In
accordance with West Virginia Code 55-2-12, a claim for damage must
within two years from the date of the damage to the property. This
was filed on September
3, 1986. The Court, under the provisions of W.Va. Code 14-2-21,
over a claim which is not filed within the time specified by the
applicable statute of limitations.
However, the Court has determined that respondent was made aware of
system and failed to provide a satisfactory remedy. For that
Court is of the opinion
that claimants be made an award for water damage to personal
which occurred in
1986. Accordingly, the Court makes an award in the amount of
Award of $199.96.