
    
      Opinion issued March 23, 1981
    
    VIRGIL E. MOORE vs. DEPARTMENT OF HIGHWAYS
    (CC-80-280)
    
      Nancy J. Aliff, Attorney at Law, for respondent.
   WALLACE, JUDGE:

Claimant filed this claim against the respondent for damages to his well, well house, and five Norway spruce trees.

The claimant’s home is located at the mouth of Islands Branch in Kanawha County, West Virginia. His home is situate on a 34-acre tract of land that abuts a quarter of a mile on both sides of Islands Branch Road, also known as the Ciccerone Mail Route. The road was constructed in 1956 and paved with blacktop in 1972. In 1977, a slip started on the north side of the road and spread to the south side where claimant’s home is located. There is a drain in the middle of the slide area which claimant contends has been stopped-up for approximately three years. Although claimant testified that he did not know the cause of the slide, he stated that the plugged-up drain caused the area of the slide to become saturated with water, and the hill was gradually moved. The movement of the ground has caused the well furnishing his home with water to cease producing an adequate supply. When the well was drilled, it was drilled to a depth of seventy feet, and a fifty-five-foot casing installed. It produced forty gallons of water per hour. Testimony revealed that water from deeper wells from claimant’s property and adjoining property is non-palatable and has to be treated to be useful.

Claimant’s wife testified that she had complained to respondent’s North Charleston Office on numerous occasions and had also complained to respondent’s employees doing maintenance work on the road, all to no avail.

Photographs introduced at the hearing show the movement of the earth and the cracking of the walls of the well house. No evidence was introduced by the claimant concerning the amount of his damages. As to the spruce trees, he testified that they were alive and probably could be saved by replanting.

James Smith testified that he had drilled the well for the claimants. He indicated that a well producing sufficient water would have to be drilled to a depth of 80 feet which would result in a well with water of a strong mineral content which would be non-palatable. In the event that the mineral content of the water rendered the water non-palatable, a filtering system would be necessary at a cost of approximately $1,000.00. He further stated that the cost of drilling a new well would cost $350.00, and the casing would cost $357.50. A new well house could be constructed for $175.00.

The respondent introduced no testimony, and from the record, the Court is of the opinon that the respondent’s failure to correct the slide condition was the cause of the claimant’s damages. The Court has concluded that the cost of repair to claimant’s property is the proper measure of damages. See Jarrett v. E. L. Harper & Sons, Inc., ....W.Va., 235 S.E.2d 362 (1977). Accordingly, the Court makes an award to the claimant for the well, well house, and filtering system in the amount of $1,882.50.

Award of Si 882.50.  