
    
      Opinion issued January 26, 1983
    
    BERNARD C. LYONS and HELEN V. LYONS vs. DEPARTMENT OF HIGHWAYS
    (CC-79-578)
    Claimants appeared in person.
    
      Nancy J. Al'iff, Attorney at Law, for respondent.
   GARDEN, JUDGE:

The claimants allege that respondent negligently failed to maintain drainage lines along Route 39 in Richwood, Nicholas County, West Virginia, and that such negligence resulted in damages to their home in the amount of $45,000.00. The house, a two-story structure, which is concrete block on the lower level, and wood on the top, has developed numerous cracks in the concrete floor and has settled, cracking a number of windows. Claimants allege that respondent promised to correct the drainage problems before resurfacing Route 39 in 1977 but failed to do so. As a result, the drain became clogged and water damage occurred.

Respondent’s witness, Eugene Tuckwiller, an engineer, testified that the hillside behind the claimants’ property contains subsurface water which flows continuously which has caused the ground to become unstable around the claimants’ home, and caused movement of the land. This movement is unrelated to any action respondent has taken, and respondent has no responsibility for water until it reaches its right-of-way.

The Court is of the opinion that the claimants have failed to establish by a preponderance of the evidence that the acts or omissions of the respondent resulted in the damage to their home. The evidence indicates that the saturation of the hillside beyond claimants property was the direct cause of the movement of the land. Caldwell, et al. v. Dept. of Highways, D-690 et al. (1975). The Court must disallow the claim.

Claim disallowed.  