
    
      OPINION ISSUED APRIL 30, 1992
    
    LONNIE WOODBURN VS. DIVISION OF HIGHWAYS
    (CC-91-17)
    Claimant represents self.
    James D. Terry, Attorney at Law, for respondent.
   PER CURIAM:

On December 17, 1990, claimant was operating his vehicle traveling south on U.S. Route 250 in Fairmont, West Virginia, when a tree came off the west side of the bank and fell onto claimant’s vehicle. Claimant’s vehicle was a total loss and his young son, a passenger in the vehicle, received personal injuries. Claimant alleges the value of his vehicle was $1,400.00, for which he brought this claim.

Respondent denied negligence and asserted that the tree which fell from the bank was not on the respondent’s right-of-way.

The evidence in this claim established that the stump of the tree which had fallen onto the claimant’s vehicle was approximately 57 feet from the centerline of the highway. Respondent’s right-of-way is 45 feet from the centerline. It appeared to the Court at the hearing that the tree was not within respondent’s right-of-way.

The Court informed the claimant at the hearing that he could obtain survey of the area if he was of the opinion that the tree was actually within the respondent’s right-of-way. Thereupon, the Court granted leave to the claimant to have the area survey and the Court assumes that the claimant desires that the claim be submitted upon the transcript.

In accordance with evidence in this claim, the Court concludes that the tree which damaged claimant’s vehicle was not within the respondent’s right-of-way. Therefore, the claim must be denied.

Claim disallowed.  