
    
      OPINION ISSUED JANUARY 18, 1988
    
    CSX TRANSPORTATION COMPANY VS. DEPARTMENT OF HIGHWAYS
    (CC-84-180)
    B. Jane Myers and Randell Baisden, Attorneys at Law, for claimant.
    Nancy J. Aliff, Attorney at Law, for respondent.
   HANLON, JUDGE:

This claim was originally filed in a style that did not reflect the proper party claimant. The Court, upon the claimant’s motion, amended the style of the claim to reflect CSX Transportation Company as the claimant.

CSX Transportation Company owns and operates a railroad line in Mineral County. Adjacent to this land is West Virginia State Route 42 which is higher in elevation than the railroad. There is a rock high wall immediately above the railroad tracts. In 1979 and early 1980, there were subsidence problems with the hillside. Slides then occurred in this area identified as "Site B." The respondent took standard corrective measures to minimize the problem. During March 9 - 12, 1982, a major failure of the embankment occurred at another area designated as "Site A."

Although both slides are on State Route 42 above the railroad right of way, "Site B” is approximately 300 feet downgrade from "Site A."

A large portion of Route 42 collapsed and started sliding down toward the railroad's property at the time of the "Site A" failure. Respondent excavated into the hillside to permit the road to remain open. On March 13, 1982, respondent used a 977 Cat track loader to remove some of the material from the hillside to establish a safe, one-lane detour around the "Site A" slip area. When the detour was constructed, respondent maintained the ditch near the hillside so the water that was flowing in the ditch line would not cross the detour and flow into the slip area. Material was placed on the outside edge of the shoulder on either side of "Site A."

The claimants' right-of-way on the Route 421 side is 40 feet; 230 feet on each side of the center line. The "Site A" slide area was inclusive of respondent's right-of-way, but it did not occur totally on respondent's right-of-way.

"Site B" was regularly monitored by respondent and respondent observed no indication of problems with "Site A" during a February 22, 1982 inspection. On March 9, 1982, some movement had appeared and "Site A" was reviewed by respondent. On March 9, 1982, when the area was investigated by Terry R. Kesner, there was no obstruction in either the ditch line or the culvert.

The complaint alleges it was respondent’s improper conduct or negligence at "Site B" which caused the slide at "Site A." The evidence fails to establish that respondent was negligent in its maintenance of State Route 42. The slides at "Site B" and "Site A" were two distinct slides. The slide at "Site B" was not relevant to the slide at "Site A." The respondent was unaware of the proclivity of "Site A" to slip. The claim is accordingly denied.

Claim disallowed.  