
    
      OPINION ISSUED MARCH 28, 1988
    
    CLAUDE BARKER, JR., EUGENE BARKER, RHODEN BARKER, LAURA TAYLOR, GRACE CLAYMON, AND HELEN NEFF VS. DEPARTMENT OF HIGHWAYS
    (CC-87-115)
    Claimant Claude Barker, Jr. appeared in person.
    Nancy J. Aliff, Attorney at Law, for respondent.
   PER CURIAM:

Claimant Claude Barker, Jr., in addition to his five brothers and sisters, own a house and cellar house on County Route 26, Ritchie County, West Virginia, which they inherited from their mother. Claimant is residing in the house at this time. The Court, on its own motion, amended the style of the claim to include the five other heirs in whose names the property is titled. The claimants seek $1,500.00 for damage to the house roof and cellar house as a result of a fallen tree.

The claimants allege that the respondent graded the road approximately one year before the date of this incident and damaged the roots of the tree causing it to fall, and this resulted in the loss. Claimant Claude Barker, Jr. testified that on or about March 14, 1984, a free fell on the house. He stated that it was a living red oak tree. He stated that the house is approximately 10 feet from the highway and the width of the highway is 20 feet. The tree is located on the respondent's right-of-way.

William J. Frederick, a neighbor, confirmed the testimony of the claimant that when the road was graded a tree root was cut and the tree later fell. He was unable to state the date when the tree fell. He testified that the claimants' cellar house was gone, and the comer of his house was gone.

Gene Tanzey, County Highway Department Superintendent for Ritchie County, testified that he supervises the machinery used by the respondent. Oil drilling was being done in the area by individuals not authorized by respondent. Those individuals moved numerous large bulldozers out over the road by claimants' house. The testimony indicated that the respondent did not grade the road or have any equipment on the road that could have damaged the tree root.

The claimants' assertion of liability is based on the theory that respondent was negligent in its grading of the road near claimants' house, which resulted in damage to a tree at that location and subsequent damage to claimants' house. The Court is unable to find negligence on the part of respondent as the record lacks proof that respondent performed any grading. Accordingly, the claim must be denied.

Claim disallowed.  