
    
      Opinion issued January 28, 1981
    
    BRACKEN CONSTRUCTION COMPANY vs. DEPARTMENT OF HIGHWAYS
    (CC-78-24)
    
      James R. Watson, Attorney at Law, for claimant.
    
      Stuart Reed Waters, Jr., Attorney at Law, for respondent.
   PER CURIAM:

This claim was submitted for decision based upon a Stipulation filed by the parties which revealed the facts which follow.

On December 30,1971, the respondent Department of Highways awarded a contract to the claimant for the construction of the I-79 - U.S. Route 50 Interchange in Harrison County, West Virginia. This contract incorporated by reference the State Road Commission of West Virginia Standard Specifications Roads and Bridges (adopted 1968) which provided that the respondent would be responsbile for securing “all necessary rights of way” in advance of construction.

The Department of Highways, in accordance with the righty-of-way statement of the contract and the above-cited Specifications, represented that it either had acquired, or would acquire, title, rights of way, or rights of entry to all parcels involved in the project in question.

Pursuant to the terms of the contract, claimant began excavating and removing earth. During this excavation, claimant came upon certain seams of coal and began removing it from the project site.

An application for temporary injunction was filed against the claimant by plaintiffs Louis and Mary Roda and James and Betty Lee Thompson in the Circuit Court of Harrison County, at which time the Department of Highways announced that it was prepared to institute condemnation proceedings for the coal land and rights for public use.

The separate condemnation actions were thereupon initiated, and the Circuit Court of Harrison County denied the temporary injunction prayed for by the plaintiffs.

Because the respondent failed to obtain all the necessary easements and rights of way involved in the project, the claimant was forced to obtain legal services to oppose and defend the subsequent action for a temporary injunction. The legal fee incurred by claimant amounted to $1,928.30, which was paid to the law firm of Steptoe and Johnson.

In view of the foregoing stipulated facts, the Court makes an award to the claimant in the amount of $1,928.30.

Award of $1,928.30.  