
    
      Opinion issued January 3, 1973
    
    DELBERT J. MATHENY, Claimant, vs. DEPARTMENT OF HIGHWAYS, Respondent.
    (No. D-550)
    Claimant appeared in person without counsel.
    
      Thomas P. O’Brien, Assistant Attorney General, and Donald L. Hall, Esq., for Respondent.
   PETROPLUS, JUDGE:

A claim in the amount of $200.00 was filed against the West Virginia Department of Highways, Respondent, by Delbert J. Matheny, cattle farmer, Claimant, for damages to his herd of cattle which became ill generally and lost weight as the result of eating wilted vegetation inside of the fence line that had been sprayed with a chemical designated as tandex herbicide by agents of the Respondent in the maintenance work along the right of way of Interstate 77 in the vicinity of Mineral Wells, Wood County, West Virginia.

The Claimant was the only witness produced, and the State, admitting the use of herbicide in its maintenance work, denied the toxicity of the spray. The photographs adduced by the Claimant show in vivid color wilted grass over a wide area within the fence line on his property in contrast to the verdant field beyond. According to the evidence the herd was of high quality, composed of Holstein and Angus cattle, in good health before the spraying procedure. Some of the cattle, instead of normally gaining weight at a rate of three or four pounds a day, developed diarrhea and became droopy and listless, losing weight for a period of three weeks until they recovered from the effects of eating the wilted brown grass covered with the spray material.

The Respondent offered as an exhibit a brochure giving a chemical analysis of the fluid used, which without further explanation is not too helpful to the Court, and said brochure indicates that the chemical is noncorrosive and of low mammalian toxicity. On the other hand, the Claimant has failed to adduce a report from a veterinarian supplying the expert testimony that we would normally need to decide a claim of this nature.

It is common knowledge, however, that certain types of wilted vegetation develop an inherent toxicity of their own, and it is inescapable to conclude that in this case the property rights of the farmer were invaded by causing the grass inside his fence line to wilt and die over an area of three or four feet. The sickness of the animals shortly after eating the wilted grass covered with the spray material establishes a causal connection between the trespass and the damage. We hold that there is liability in this case because of the failure of the Respondent to take adequate and proper measures to protect the Claimant’s property from an irresponsible spraying procedure.

The measure of damages borders on the conjectural, but the claim being modest in amount, we are of the opinion that an award should be made to the Claimant in the amount of $200.00, which represents a loss of approximately 500 pounds in cattle weight over a three week period at the market rate of 40 cents per pound. The testifying farmer was fair and honest in giving his best judgment of the loss of weight.

Award of $200.00.  