
    
      Opinion issued April 1, 1980
    
    SHEL PRODUCTS, INC. vs. DEPARTMENT OF HIGHWAYS
    (CC-76-92)
    
      Harry N. Barton, Attorney at Law, for the claimant.
    
      Nancy J. Aliff, Attorney at Law, for the respondent.
   WALLACE, JUDGE:

The claimant, Shel Products, Inc., filed this claim against the respondent for loss of business and rents occasioned by backed-up surface water caused by a clogged drainage system maintained by the respondent.

The claimant managed and operated a business of a car wash and an apartment building consisting of two apartments on West Virginia Route 79/3, known as Cabin Creek Road, in Kanawha County.

Respondent maintained an underground storm sewer system adjoining claimant’s property to carry off rain water to Cabin Creek and to prevent accumulation of water in the area. In the spring of 1976, the water started backing up. Numerous calls were made to the respondent, who sent crews to the area to attempt to open the pipes. The problem continued for several years. Water would stand on and along the road for several days at a time. Claimant lost business and tenants moved out of their apartments. Representatives of the claimant testified that, from 1976 until the problem was remedied in 1979, the claimant lost $20,178.00 in business and $900.00 in rent.

Joseph T. Deneault, assistant director of maintenance for the respondent, testified that he became acquainted with the problem as early as 1976 by reason of complaints, and that crews were dispatched to attempt to remedy the problem. He stated, “The drainage pipe was clogged at the outlet end which was very close to the creek level, causing the water to back up through the drop inlet onto the road.” He stated that the respondent attempted unsuccessfully to correct the situation with an open drainage ditch, but a new underground drainage system, completed in the spring of 1979, has solved the problem.

The inability of the respondent to correct the drainage problem from 1976 until remedied in 1979 caused the claimant to sustain the damages complained of. Representatives of the claimant testified as to business receipts for these years, and a loss of rent in the amount of $900.00. It was claimed that the receipts should have been $14,000.00 for each of the years, and that the claimant lost $20,178.00. It is obvious that the claimant sustained damages caused by the respondent’s failure to correct the drainage system. However, based on the record of damages presented to the Court, the claimant is hereby awarded $5,000.00 for loss of business and $900.00 for loss of rent.

Award of $5,900.00.  