
    
      Opinion issued January 21, 1980
    
    ROBERT L. FERGUSON, EXECUTOR OF THE ESTATE OF ELIZABETH L. FERGUSON, DECEASED vs. DEPARTMENT OF HIGHWAYS
    (CC-78-148)
    
      Henry Haslebacher, Attorney at Law, for respondent.
   WALLACE, JUDGE:

This claim was filed against the respondent in the amount of $3,500.00 for damages to a home fronting on Coonskin Drive in Kanawha County, West Virginia.

Since the hearing of the claim, Elizabeth L. Ferguson has departed this life, and her son, Robert L. Ferguson, was appointed executor of her estate by the County Commission of Kanawha County, West Virginia, on October 9, 1979. Her claim is therefore revised in the name of her executor.

Coonskin Drive is maintained by the respondent. The evidence presented at the hearing revealed that 25 to 30 years ago, Coonskin Drive was rebuilt by the respondent. The elevation of the road was raised, and the area around the claimant’s home was raised to the elevation of the road. Previous to this, when the floor of the basement was even with the road level, a catch basin was constructed at the corner of claimant’s lot about 12 feet from the road to dispose of drainage in the area. The construction left claimant’s home lower than the adjoining properties.

Testimony indicated that homes in the vicinity of claimant’s home are serviced by septic tanks which were apparently installed with improper drainage fields at a time when the health regulations were less stringent. The record indicates that the catch basin was not open and did not function properly to carry off the area drainage. As a result, surface water from the highway and drainage from the septic tanks, instead of flowing through the catch basin, flowed onto claimant’s property, causing damage to the walls and floor of claimant’s basement.

It is therefore apparent that the damages were caused by the failure of the respondent to maintain proper drainage. Over the years, the problem worsened, and although complaints were made, no effort was made by the respondent to correct it.

Accordingly, the Court hereby makes an award in the amount of $5,000.00 for damages to claimant’s home. Estimates of damage introduced exceeded the amount of the claim; therefore, the Court, on its own motion, amends the claim to conform with the amount of the recovery.

Award of $5,000.00.  