
    
      OPINION ISSUED APRIL 11, 1991
    
    
      RAYMOND T. SUTTON VS. DIVISION OF HIGHWAYS
    (CC-90-189)
    Claimant represents self.
    James D. Terry, Attorney at Law, for respondent.
   PER CURIAM:

Claimant is the owner of property in Waverly, Wood County. On April 16, 1990, respondent had a crew ditching the State maintained road, known as Corker Run, in front of claimant’s property. Claimant alleges that the crew placed a ditch across his driveway which caused damage to his 1982 Cadillac when he was backing the vehicle out of his driveway the next day, April 17, 1990. The vehicle sustained damage to the bumper for which claimant now alleges a loss in the amount of $156.50.

Claimant testified that he had obtained a permit from the respondent in 1980 to place a drainage structure under the driveway. A metal corrugated pipe was placed under the driveway. Claimant alleged that on several occasions respondent’s trucks used his driveway and damaged the metal pipe. After opening the pipe on more than one occasion, claimant had not attempted to open or repair the pipe since 1988, over a year prior to this incident.

On the evening of April 16,1990, claimant was returning to his home in his pick-up truck. He proceeded through the ditch and into his driveway without any problems. The ditch was approximately one foot in width and eight-to-ten inches in depth. On the following morning, he backed his automobile down the driveway and into the ditch. The automobile sustained damage when it went into the ditch.

D. Dale Deuley, a crew leader for the respondent, testified that his crew performed the ditching operation which involved claimant’s driveway. The crew “cut a swale to drain water” as the water was running across the road. Mr. Deuley did not observe any metal pipe for drainage under the driveway. On April 18, 1990, after having received a call from the claimant, the crew returned and added gravel to the ditch to alleviate the problem for claimant entering and exiting his driveway.

The Court, having reviewed the evidence in this claim, is of the opinion that respondent acted in an appropriate manner. The impoundment of water was caused by the faulty pipe beneath claimant’s driveway. The Court notes that W.Va. Code §17-16-9 provides:

The owner or tenant of land fronting on any state road shall construct and keep in repair all approaches or driveways to and from the same, under the direction of the state road commission, and, likewise, the owner or tenant of land fronting on any county-district road shall construct and keep in repair all approaches or driveways to and from the same, under the direction of the county road engineer, and it shall be unlawful for such owner or tenant to fill up any ditch, or place any material of any kind or character in any ditch, so as in any manner to obstruct or interfere with the purposes.for which it was made. (Emphasis added).

According to the provision of this section of the Code, claimant failed to maintain the metal pipe beneath his driveway. Respondent contends that it was performing proper maintenance opening the ditch for a State maintained road. The Court is of the opinion that the action on the part of the respondent was proper maintenance to alleviate a potential hazard for the travelers of this road, i.e., allowing water backed up at claimant’s driveway to flow onto the road surface. As claimant has failed to establish any negligence on the part of the respondent, the Court is of the opinion to and does disallow this claim.

Claim disallowed.  