
    
      Opinion issued November 10, 1980
    
    CHARLES H. PAGE and DOROTHY PAGE vs. DEPARTMENT OF HIGHWAYS
    (CC-80-122)
    
      Nancy J. Aliff, Attorney at Law, for respondent.
   WALLACE, JUDGE:

The claimants filed this action to recover damages to their property located on Klondike Road in Jackson County, West Virginia. The claimants allege that a portion of their property was improperly taken when the respondent Department of Highways widened Klondike Road, moved the ditch line, and replaced claimants’ driveway. They also allege damages to the house from heavy truck traffic during the construction period.

Claimant Charles Henry Page testified that he and his wife, Dorothy Page, by instrument dated August 26, 1978, granted a “Construction Easement” to the respondent after which the widening work and ditch construction on Klondike Road was performed.

Mr. Page stated that a crack which appeared in a front window of his home was caused by vibration from a piece of heavy equipment traversing Klondike Road and that the vibrations also caused the separation of a drainpipe from the house and the formation of cracks in the driveway.

William Dahl Burbank, right-of-way agent for the Department of Highways, testified that the right of way on Klondike Road was 40 feet. According to the as-built cross sections introduced in evidence the top of the cut on the back slope of the ditch line was 20 feet from the center of the road adjacent to claimants’ property. The 20 feet from center line would place the ditch within the State’s right of way.

Edward Neal Keffer, construction superintendent for the respondent on this particular project, testified that the Department of Highways did not use any heavy equipment on the project in the vicinity of the claimants’ property.

In view of the evidence concerning the allegation by the claimants that the respondent used a portion of claimants’ property for the ditch line of Klondike Road, the as-built cross sections demonstrate that the respondent was within its right of way. In addition, if the respondent had taken a portion of the claimants’ property, they have an adequate remedy at law through condemnation proceedings. This Court does not have jurisdiction where the claimants have an adequate remedy at law. See Carlile v. Department of Highways, 13 Ct.Cl. 192 (1980).

From the record, the claimants have failed to prove that Klondike Road was not built within the right of way nor that the negligence of the respondent caused the damages to claimants’ house and driveway.

Accordingly, the Court disallows the claim.

Claim disallowed.  