
    
      Opinion issued October 11, 1978
    
    WILLIAM J. ADKINS, DOROTHY MARIE ADKINS, ARMILDA WILEY AND DOROTHY MARIE ADKINS, AS NEXT FRIEND OF MARY JANE ADKINS AND PEGGY JOYCE ADKINS vs. DEPARTMENT OF HIGHWAYS
    (No. CC-77-78)
    
      Houston A. Smith, Attorney at Law, for claimants.
    
      James W. Withrow, Attorney at Law, for respondent,
   WALLACE, JUDGE:

William J. Adkins and Dorothy Marie Adkins filed their claim against the Department of Highways in the amount of $5,200.00 for damages to their home caused by flood water.

In the course of the hearing, it developed not only that title to the real estate involved in the claim was vested in William J. Adkins and Dorothy Marie Adkins, but that the deed to the property, introduced as Respondent’s Exhibit No. 2, granted their children an interest subject to the life estate of Armilda Wiley. Accordingly, Armilda Wiley and Dorothy Marie Adkins, as next friend of Mary Jane Adkins and Peggy Joyce Adkins, the Adkins’ daughters, were added by the Court as additional claimants.

The subject property consists of approximately 10 acres of land fronting about 2500 feet on W.Va. Route 37/2 in Lincoln County, West Virginia. The home of the claimants is a one-story, four-room frame house with a front porch and a closed-in back porch. The house rests on piers of concrete blocks about two feet above the ground.

Leander Wiley, the father of the claimant, Dorothy Marie Adkins, built the house 25 to 30 years ago and lived in it for approximately 10 years. He conveyed the property to the claimants, who have lived there since.

The claimant, Dorothy Marie Adkins, testified that approximately four years ago the respondent constructed a fill and installed a three-foot culvert in Bruner Creek, which runs within 25 feet of their house. She stated that after the culvert was installed, the creek overflowed during heavy rains, and the excessive water washed under the house. She complained to the respondent’s superintendent at West Hamlin, West Virginia, and to Commissioner Ritchie, and wrote to the Governor. The respondent replaced the culvert with a four-foot culvert approximately one and a half years ago, which has not corrected the problem. She further testified that the creek has overflowed four times since the culverts were installed, the last time being April 4, 1977. She stated that the respondent had been notified each time the water overflowed the creek banks.

The claimants maintained that the culverts were improperly installed by the respondent, causing the flooding to occur. No evidence was introduced by the respondent to refute the claimants’ allegation. The record establishes that flooding did not occur prior to the installation of the culverts by the respondent, and that the claimants notified the respondent, but no action has been taken to remedy the problem.

The claimants introduced as their Exhibit No. 2 an estimate of the cost to repair the entire house. The repairs listed on the estimate in the amount of $13,820.00 were in excess of damages actually caused by the water. The estimate included replacing the closed-in back porch and the front porch, paneling of three interior rooms, and replacing the roof' shingles.

The parties admitted by agreement Respondent’s Exhibit No. 4, which was an appraisal of the damaged property.

The appraiser determined that there was physical damage to the house caused by the flooding of the creek, but that there was no damage to the land from erosion or soil movement. Primary damage to the property consisted of the weakening of the pier foundation through erosion around the pillars. The appraiser considered the damages claimed to the house roof, but since the roof was over 25 years old and the covering had an actual age of 22 years, it was at the end of its economic life. Other areas of the house claimed to be damaged were the result of physical deterioration, not the flooding. The only before and after value of the property introduced in the record was established by the respondent. The appraiser established the market value to be $8,500.00 prior to the damage, and $6,500.00 after the damage.

Therefore, from the evidence and exhibits, the Court finds that the claimants suffered water damage to their property as a result of the negligence of respondent, and makes an award of $2,000.00 to claimants William J. Adkins, Dorothy Marie Adkins, Armilda Wiley, and Dorothy Marie Adkins, as next friend of Mary Jane Adkins and Peggy Joyce Adkins.

Award of $2,000.00.  