
    (No. 608
    JAMES A. MORRISON and ONEIDA MORRISON, Claimants, v. STATE ROAD COMMISSION, Respondent.
    
      Opinion filed May 4, 1948
    
    Appearances:
    
      Lucian W. Blankenship, for claimants.
    
      W. Bryan Spillers, Assistant Attorney General, for the state.
   MERRIMAN S. SMITH, Judge.

James A. Morrison and his wife, Oneida Morrison, live at Winslow, Wayne county, West Virginia. They have lived there for over fifty years. The home place is owned by James A. Morrison, and is situated on about one acre of ground on the east side of Grassy Lick Branch and on the western side of state route No. 13. Another tract of bottom land on the south side of state route No. 13 and bordering on the east side of said Grassy Lick Branch, which is a tributary of Beech Fork Creek, is owned by both James A. Morrison and Oneida Morrison, his wife.

For the past five years upon several occasions flash floods or unusual rises have caused the waters of Grassy Lick Branch to overflow and inundate the property of the claimants, damaging the foundation of the dwelling, and emptied and discharged filthy and unsanitary water into their well, and otherwise damaged the cellar house, flowers and landscaping to the extent of $1000.00, for which the claim is made.

A short time prior to 1933 the Wayne County Court built a concrete bridge across Grassy Lick Branch along what is now state road No. 13, the bridge having two arches each about ten feet wide with a pier in between about three feet wide, making a total length of twenty-three feet. The uncontradicted evidence is that for years prior to the erection of said concrete bridge that the water from Grassy Lick Branch did get up in the Morrison yard but did not overflow the well, cellar or toilet. Grassy Lick Branch is a sluggish stream, and it meanders for a distance of three or four hundred feet north of the bridge and all the way .south of the bridge until it reaches Beech Fork Creek about 1981 feet south of the bridge. The evidence of the engineers showed the drainage area north of the bridge to be 1088 acres (geographical map, state’s exhibit 15) and they figured a rainfall of 2% inches, which is one-half inch above normal, would require 78.85 square feet to go through, whereas the clearance of the bridge totals 98.06 square feet (record p. 83). The roof of the bridge is 598.34 elevation. The elevation of the top of the south wall in front of the Morrison home, paralleling road 13, is 599 and the elevation of the top of the wall on the west side of the home, facing Grassy Lick Branch, is 597.88, which is five-tenths lower than the roof of the bridge. The heavy rainfall on Monday, April 12, 1948, was 2.57 inches and on Tuesday, the thirteenth, .98 inches and on Wednesday, the fourteenth, .58 inches, making a total of 4.08 inches during the three-day period. (Record p. 84). The engineers were on the scene on Thursday, the fifteenth of April, and their observation was that the high water on the bridge was 7% inches below the roof of the bridge which was about two inches lower than the west retaining wall around the Morrison yard, which elevation is 597.88. The bottom land owned by claimants to the south of the bridge through which Grassy Lick Branch flows and forms the western boundary of the Morrison property is crooked and meandering; it is also sluggish since the drop there is .513, which is a little over a half a foot in 100 and it is 1981 feet from the bridge to the waters of Grassy Lick Branch at Beech Fork, so a rise of ten feet in Beech Fork Creek would cause the water in Grassy Lick Branch to backwater. Furthermore, to the east and to the rear of the Morrison residence the lot runs back gradually to a hillside. The drainage from this hillside is by a ditch along the northern boundary of Morrison’s lot, also another ditch to the south of Morrison’s dwelling which parallels state road 13 and drains into Grassy Lick Branch. There is a concrete walkway from the house to the road which crosses the ditch and there is a pipe line under the walk which is totally stopped up. The water comes off this hillside at a one and one-half to two per cent grade. The state road is higher than the Morrison lot which parallels it on the north side. At no time has the surface of the roadway been damaged by the high waters of Grassy Lick Branch.

After a view of the Morrison property the bridge over Grassy Lick and the adjoining area by members of the court, we are of the opinion that the building of the concrete bridge over Grassy Lick Branch is not the cause of the water damage to the Morrison property. The house and outbuildings aro built, in a low, swampy and poorly drainod area, and (lie bridge opening is ample during normal rainfall, and il, is not encumbent, upon the State to construct its roads and bridges to take cart' of (lash Hoods or cloudburst which frequent most, areas especially in the spring- and summer months. If a person builds his home on a rock foundation and on an elevation it will withstand the Hood and elements. On the other hand, if he builds his home on sand and in swampy soil the elements will in time undermine, inundate and wash away the results of his labor.

An award is denied and the claim dismissed.  