
    
      Opinion issued February 14, 1980
    
    ARTHUR FRIEND and PAULINE FRIEND vs. DEPARTMENT OF HIGHWAYS
    (CC-76-35)
    
      Henry Haslebacher, Attorney at Law, for respondent.
   RULEY, JUDGE:

Claimants own property adjacent to West Virginia Secondary Route 56, near Newburg in Preston County. Claimants allege that respondent’s negligent installation of a 15 1/2 inch culvert and failure to maintain drainage ditches on Route 56 caused water to flow onto their property and damage their mobile home.

The evidence indicated that sometime in 1975, respondent replaced a 4 inch drain pipe with a 15 1/2 inch culvert under Route 56 directly in front of claimants’ mobile home; that claimants’ property was located on the east side of Route 56; that the westerly border of Route 56 is hillside; that claimants’ property serves as a natural drain for the adjacent hillside area; that the claimants’ mobile home which sustained the alleged damages was removed in 1977; and, that the mobile home in which claimants currently reside is built upon the concrete porch of the previously damaged mobile home and has not been subject to damages from water or mud.

The general rule for drainage cases was recited by Judge Jones in Holdren v. Department of Highways, 11 Ct. Cl. 75 (1975): “Under the law of this State surface water is considered a common enemy which each landowner must fight off as best he can, provided that an owner of higher ground may not inflict injury to the owner of lower ground beyond what is reasonably necessary.” There is no evidence that the 15 1/2 inch culvert installed in 1975 greatly increased the flow of water onto and across claimants’ property. The Court is of the opinion that no act or omission of the respondent proximately caused the damages sustained by the claimants. Part of claimants’ problem can be attributed to the natural drainage of water off the nearby hillside onto their property. It is also apparent that claimants’ problems could have been remedied by the use of a more substantial foundation for their damaged mobile home, as the present concrete pad foundation has been in place for approximately one year and claimants indicate that they are not having water or mud problems with their new mobile home. Although the Court realizes the serious nature of the damage to claimants’ property, the evidence precludes an award of damages against the respondent. Accordingly, the claim is denied.

Claim disallowed.  