Hudson v. Department of Highways

PER CURIAM: Claimants are the owners of real property located on Commerce Street, New Cumberland, Hancock County, West Virginia. The property is improved with a house and detached garage. The property is on the lower side of a hill. Above the house runs County Route 20, also known as Cemetery Hill Road, a state-maintained roadway. Claimants allege that on June 8, 1981, claimants’ garage was damaged by water and mud. This damage was alleged to be the result of respondent’s failure to correct a drainage problem on Cemetery Hill Road, causing the water to be diverted onto claimants’ property. They seek $10,000.00 for the damage. Respondent alleges that there were no drainage problems on Cemetery Hill Road, but that the damage resulted during an unusually heavy rainfall, which was stipulated by the parties to be 3.7 inches from 7:25 p.m. June 8 to 7:30 a.m. June 9, 1981. The evidence established that following the rain, a culvert on Cemetery Hill Road was blocked with debris, but no one could state [184] whether this was due to the rain, or had existed prior to the storm. There was also evidence of an earlier flooding incident in 1978, following which complaints were made to respondent. Residents in the area complained that the sewer lines on Cemetery Hill Road were too small. Respondent’s records indicate that the flooding occurred during a severe rain. There was also testimony concerning flooding in 1956. Donnie L. Bensenhaver, Assistant Maintenance Engineer, testified that a secondary road like Cemetery Hill Road is designed for a one in ten year storm. This means that the road stands a chance of flooding once every ten years, and he stated that the flooding of Cemetery Hill Road is consistent with the design criteria. After reviewing the testimony, and after examining rainfall records covering from 1964 - 1984, which were submitted by the parties, it is apparent to the Court that the damage to claimants’ property occurred during a period of extremely heavy rainfall. The flood damage was the result of this rain, for which the drainage on Cemetery Hill Road was not designed to handle. As it has not been established that the damage was the result of inadequate maintenance of the drainage system on Cemetery Hill Road, the Court must deny the claim. Claim disallowed.