
    
      Opinion issued February 14, 1980
    
    ROBERT R. NICKEL and BERTHA E. NICKEL vs. DEPARTMENT OF HIGHWAYS
    (CC-78-189)
    
      Nancy J. Aliff, Attorney at Law, for respondent.
   RULEY, JUDGE:

The claimants seek to recover the sum of $1,751.01, that being the amount expended by them for correction of a slip which occurred on the side of their residential property abutting on the Old Monongah Road in Fairmont. Mr. Nickel testified that the ditch along that road was evidenced from about 12 or 14 inches to about six feet in the summer of 1976 and that, in May, 1977, he first noticed a crack in his yard. The first complaint pertaining to the area received by the respondent came in May, 1977, from Mr. Raspa, who was building a house on the adjoining lot. In excavating a basement in the hillside, Mr. Raspa had uncovered a spring. Water from the spring had caused a supersaturated condition of the soil on the Raspa lot which extended into the Nickel property according to the undisputed evidence. In addition, the excavated soil, being sloped over the saturated soil, placed an overburden upon it according to the respondent’s evidence. In 1978, the respondent drove piling into the hillside which apparently stopped the slip. It has not been proved by a preponderance of all the evidence that the damage was caused by misconduct on the part of the respondent and, accordingly, this claim must be denied.

Claim disallowed.  