
    (No. 611-S
    EUREKA PIPE LINE COMPANY, Claimant, v. STATE ROAD COMMISSION, Respondent.
    
      Opinion filed January 16, 1948
    
   MERRIMAN S. SMITH, JUDGE.

The maintenance crew of the state road commission was engaged in relocating a section of the highway along Rush Creek, secondary road No. 50 in Roane county, West Virginia, on August 25, 1947. They excavated a ledge of hard stone which necessitated setting off a blast of dynamite. The Eureka Pipe Line Company had relocated their four-inch oil line running it parallel with the newly located highway, but it had not been buried so was exposed when the blast was put off. Claimant had no notice that the shot was to be put off and as a consequence the pipe line was broken when the stone was thrown over the side of the road.

An itemized statement of man-hours for labor, replaced pipe, use of truck and nineteen barrels of oil was presented by the Eureka Pipe Line Company, in the sum of $209.31, this being the amount claimed.

The head of the agency involved, the state road commissioner, concurred in and recommended an award, which was approved by the attorney general.

A majority of this court hereby recommends an'award in the sum of two hundred nine dollars and thirty-one cents ($209.31) to be made to claimant, the Eureka Pipe Line Company.

ROBERT L. BLAND, Judge,

dissenting.

Since this case embraces questions of fact and liability and comes to the court of claims under section 17 of the court act for informal consideration upon a record made and tiled by the state road commissioner, and no opportunity is afforded the court to make an independent investigation of the facts attending the claim, I cannot see my way clear to concur in the award made by majority members of the court. It is, however, obvious to my mind that the amount of the award made represents a compromise agreement made by the head of the agency concerned, and the court has merely ratified that settlement. This is apparent from the record. The claim is not established by evidence. The award ratifies admitted negligence of the state.  