
    
      Opinion issued February 20, 1979
    
    McCLOY CONSTRUCTION COMPANY, INC. vs. DEPARTMENT OF NATURAL RESOURCES
    (No. CC-77-221)
    
      Jack O. Friedman, Attorney at Law, for claimant.
    
      Frank M. Ellison, Assistant Attorney General, for respondent.
   WALLACE, JUDGE:

The claimant, McCloy Construction Company, Inc., was awarded the contract to construct for the respondent the lodge facilities at Canaan Valley State Park. During the months of October and November of 1975, rock was encountered unexpectedly along the front line of the building. The claimant contends that the architect’s representative and respondent’s inspector on the construction site were advised of the rock and that claimant was advised to submit a claim for the rock excavation. The claimant did so file, in the amount of $233,750.00, which sum was based upon the excavation of 935 cubic yards of rock at $250.00 per cubic yard. The respondent denied the claim and asserted in its Answer that if the claimant had removed any rock for which it had not been paid, the compensation should be that which is recognized in the construction industry, and not $250.00 per cubic yard.

Subsequent to the pre-trial conference held in this matter, the parties filed a written stipulation with the Court in which it was agreed that the claimant should be paid $27,000.00 for the excavation of 300 cubic yards of rock at the rate of $90.00 per cubic yard.

Having considered the pleadings and the stipulation, the Court makes an award to the claimant in the amount of $27,000.00.

Award of $27,000.00.  