
    (No. 585
    BENNY MIZE, Claimant, v. STATE ROAD COMMISSION, Respondent.
    
      Opinion filed April 30, 1947
    
    Appearances:
    
      Robert J. Ashirorth, for the claimant.
    
      W. Bryan Spillcrs, Assistant Attorney General, for respondent.
   MERRIMAN S. SMITH, JUDGE.

In 1938 the claimant purchased two lots with a combined storeroom and dwelling building thereon, at the intersection of Bailey Avenue, the old Wehrle Road and u. S. route Nos. 19-21, in what is now the city of Beckley, Raleigh county, West Virginia.

During the year 1935, under the supervision of the state road commission, the Hatfield Construction Company built a concrete road along the old Wehrle road, raising the grade thereof. However, they installed an eighteen inch culvert at the lowTest point of the drainage area upon the land, which land was later purchased by claimant Benny Mize.

This eighteen-inch culvert was sufficient to adequately drain an area of eleven acres, whereas the drainage area for this particular drainage perimeter was approximately two acres.

It appears from the evidence that not until the year 1943, or about seven years after the installation of the culvert, did the surface water begin to back up and stand on the property of claimant. About this time the Elk Refining Company, which had leased the property of II. E. Fox, the adjoining property owner on the north side of the concrete highway, covered up the outlet of the culvert, which caused the water to stand on the property of claimant.

Any damage or injury to the property of claimant was not caused by any act or acts of the state road commission according to the facts as presented in the testimony.

Therefore, the state is not liable and an award will be denied.  