
    
      OPINION ISSUED FEBRUARY 5, 1993
    
    J. H. SOMERVILLE VS. DIVISION OF HIGHWAYS
    (CC-92-218)
    Claimant present in person.
    James D. Terry, Attorney at Law, for respondent.
   PER CURIAM:

Claimant, J.H. Somerville, seeks an award from respondent for property damages in the amount of $2,247.26 for damages resulting from the failure of respondent to maintain a ditch on property he owns in Mason County, West Virginia, on Owl Hollow Road. Claimant alleges that respondent has failed to maintain the ditch line and it is now grown over. His claim is for the cost to clean out the ditch line, place more tile in the ditch line, and plant grass seed to cover area thus providing an area for ingress and egress on the property.

From the evidence adduced at the hearing on October 8, 1992, it appears that the claimant purchased this property twenty years ago and now wishes to build a house on this property, but these is a ditch which was placed by respondent for the purpose of draining water from a highway owned by respondent. He claims that there was an agreement with the previous owner that respondent would maintain this ditch.

The claimant testified that he purchased the property on August 17, 1972; that the prior owner had given a right of way to the State for the purpose of digging such a drainage ditch on the superintendent who had agreed on behalf of the respondent to maintain the ditch. The ditch is 280 feet long. Claimant also testified that he would like for the respondent to pay the cost of cleaning the ditch out to prepare it for bulldozing, and the cost of bulldozing the ditch to place three more tile so that he may have a way to drive into and around his property.

The Court finds, as a matter of fact, that the claimant does not have a remedy in this forum; that if the respondent has taken his property without just compensation, claimant may wish to pursue a remedy in the circuit court, seeking to compel the State to institute a condemnation action against the property; and further, that claimant has not established that the respondent has a duty to maintain the ditch which is located on his property.

As this Court lacks jurisdiction over the subject matter of this claim, the Court must deny the claim.

Claim disallowed.  