
    (No. 502
    PETER SECHINI and ALICE J. SECHINI, Claimants, v. STATE ROAD COMMISSION, Respondent.
    
      Opinion filed May 9, 1946
    
    Appearances:
    
      Gilbert S. Bachmann, for claimants;
    
      W. Bryan Spillers. Assistant Attorney General, for the state.
   MERRIMAN S. SMITH, Judge.

In 1929 claimants built a story and one-half stucco dwelling on two lots on a slope adjoining the north side of the right of way of the national road in Liberty district, Ohio county, West Virginia, near the Pennsylvania state line. In 1941 the state road commission widened the highway from 18 feet to 22 feet and dug a ditch about 1 feet deep alongside the berm, which was about 8 feet wide, in front of the claimants’ property. The front porch has pulled away from the house and there are breaks in the porch pillars, cracks in the flagstone walk and tilting of two willow trees in the front yard, in addition to three or four cracks running parallel across the lawn, for all of which the claimants are seeking damages to the extent of $2500.00.

The members of the court made a personal inspection of the property and the majority of the court found that neither the center line or the grade of the highway was changed when it was widened about 4 feet in 1940-41; that the right of way extends 33 feet from the center of the road on each side; that the ditch was about 12 feet from the right of way line and that of claimants’ property.

When the house was built excavation was made for a full-size basement and for a coal bin under the porch and the dirt was thrown out in front to fill in the lawn. About a year after the house was built one Mr. Slater testified that he was employed to grade and sod the lawn. At this time there was a crack in the loose soil so he put a used telephone pole about 25 feet long in a horizontal position at the bottom of the loose or filled-in dirt, and placed five posts in a vertical position to hold the pole in position and to keep the filled-in dirt from slipping. About ten feet from the Sechini’s west property line the road commission did excavate practically to the right of way line in order to put in a culvert to carry off the water from the ditch, and upon personal observation there is no cracking or slipping of the native soil on this adjoining lot. After a careful inspection of the property and due consideration to all the testimony, the- majority opinion of this court is that the work done by the state in 1941 did not impair in any way the lateral support of the adjoining property of the claimants, and that whatever damage was sustained by them is due solely to the slipping and settling of the filled-in dirt deposited on the native soil in levelling and grading of the slope for the lawn.

Any claim for damage or an award is denied by majority members of this court and due deference is taken to the views of Judge Schuck, who will file a dissenting opinion.

CHARLES J. SCHUCK, Judge,

dissenting.

I cannot agree with the conclusion reached by the majority of the court in this case, since the evidence in my judgment, does not sustain the proposition that the slipping of the earth and the cracking of the porch attached to the house was caused by filled-in dirt as maintained during the course of the hearing by the respondent. The testimony offered to sustain this theory was, in my judgment, lamentably weak, and in some instances not worthy of consideration, since the resident engineer himself, who was the principal witness in suport of the theory in question, had to admit that the blueprints which he introduced to sustain his contention did not bear out his theory of the case, and his testimony with reference to logs and grass decaying ten years after the house in question was built was so highly improbable as to make this part of his testimony unworthy of serious consideration.

The home of the claimants was built in 1929, and the uncontradicted testimony of the witnesses is that up to the year 1941, at which time the national road was widened and the excavation complained of took place, no defect or cracks of any kind had been shown either- in the porch or the house and that shortly after the said changes in the national road, the damages to the property in question took place. This physical fact stands out as an uncontradicted feature that is so strong and convincing as to compel me to reach a conclusion contrary to that maintained by the majority. Independently of all other testimony, this -physical fact in bold relief, points the way to the proper solution of the issues here involved. I repeat that the testimony of the resident engineer, to the effect that logs and slipping grass and dirt that was put upon the adjacent property from the excavation for the cellar and basement of the house caused the damage complained of, is too far fetched, as shown by his.own testimony and not supposed by the outstanding fact just referred to; on the other hand, a reputable engineer who testified for the claimant gave if as his opinion, without qualification, that the work done by the respondent at the time that the road was widened and somewhat changed in the year 1941, was undoubtedly the cause of the damage to the property for which this claim is now presented.

In view of these conditions and deductions, I am unable to agree with the majority opinion and therefore dissent. In my judgment an award should be made.  