
    
      Opinion issued February 7, 1974
    
    F. B. AMBURGEY, TRUSTEE FOR HENSLEY HEIGHTS MAINTENANCE FUND vs. ADJUTANT GENERAL
    (No. D-633)
    
      F. B. Amburgey, Trustee, claimant in person.
    
      Henry C. Bias, Jr., Assistant Attorney General for the respondent.
   DUCKER, JUDGE:

F. B. Amburgey, as Trustee for fifteen owners of residence lots in Hensley Heights, an unincorporated suburb of the town of Man, West Virginia, claims damages in the amount of $1308.47, the cost of replacing a sidewalk and sewer line serving the residences in that subdivision. Claimant alleges that the sidewalks and sewer line were broken by motor trucks of the West Virginia National Guard when guardsmen moved victims and their personal effects to the Man High School, adjacent to the subdivision, for temporary housing immediately after.what is known as the “Buffalo Creek Flood” of February 26, 1972.

The evidence is to the effect that the subdivision property owners had an eight inch terra cotta pipe sewer line under a five inch concrete surface sidewalk along the side of the residence of John White, one of lot owners in the subdivision; that the sewer was approximately thirty inches below the sidewalk at the place where it was broken; and that the National Guard had at that time parked at that location some fifty or more heavy, double dual wheel trucks, some of them being 7.Vz ton trucks. Upon the question raised by the respondent as to whether the damages alleged by claimant could have been done by the trucks, the Court requested that the respondent have its engineers investigate the matter and report their conclusion to the Court. This was done by the respondent and the Court has received such report which admits that the damage could have resulted from the weight of the trucks.

In response to a question by the Court as to the authority of the claimant as trustee to make this claim in behalf of all the property owners in the subdivision, the claimant has filed, and the Court accepts, a Power of Attorney, in its original form, authorizing the claimant to act for the property owners in bringing and maintaining this claim and to receive for them any award which may be made herein.

As the facts as alleged by the claimant have been satisfactorily proved, and negligence on the part of the respondent is necessarily inferred from the consequences of its acts, we are of the opinion to, and do hereby award the claimant the sum of $1308.47.

Award of $1308.47.  