
    
      Opinion issued June 11, 1973
    
    JOHN S. HAINES vs. DEPARTMENT OF HIGHWAYS
    (No. D-576)
    
      N. Howard Rogers and Donald C. Hott for the claimant.
    
      Donald L. Hall for the respondent.
   JONES, JUDGE:

The claimant, John S. Haines, and the respondent, Department of Highways,. have agreed to and stipulated all of the matters pertinent to the Court’s consideration of this case as follows:

“1. The claimant owns realty situate in Mineral County, West Virginia on Hershey Hollow Road (State Road 50/2) .4 miles north of the junction of U. S. Route 50 and State Road 50/2.

2. A small run (stream) flows adjacent to claimant’s home and bisects Hershey Hollow Road which is located in front of his home.

3. For the past 33 years, the Department of Highways, and its predecessors, have maintained a bridge with a span of more than 10 feet and a clearance of approximately 5 feet 5 inches on Hershey Hollow Road over the stream in question.

4. During the summer of 1971, the Department of Highways removed said bridge, to which the claimant objected, and installed a 58 inch by 36 inch oval metal culvert. At the time of removal, the claimant advised the respondent that the bridge had been adequate in the past and that the newly installed culvert would prove to be inadequate in times of heavy rain.

5. According to James Taylor, of Fountain, West Virginia, Official Weather Observer, on June 29-30, 1972, between the hours of 7:00 P.M. and 7:00 A.M. the Keyser area had 2.17 inches of rain.

6. The previously installed culvert, because of its size and debris carried along the stream, proved to be inadequate to completely carry the run off and as a result thereof, the claimant’s property was flooded and damaged.

7. After the waters had receded, the respondent removed the oval drain and installed a metal drain with a diameter of 5 feet 6 inches.

8. The respondent admits the allegations contained in claimant’s claim insofar as they are consistent with this stipulation.

9. The parties hereto stipulate the amount of damages to be Seven Hundred Fifty Dollars ($750.00) which is a settlement of all the matters contained in this claim.”

The Court has inspected photographs and other exhibits filed with this claim and has considered statements of counsel, and it appearing that the foregoing stipulation fully and accurately states the matters involved in this claim, including a fair and reasonable assessment of the claimant’s damages, the Court is of opinion to and does accept and approve said stipulation.

Pursuant to the Court’s findings, an award is hereby made to the claimant, John S. Haines, in the amount of $750.00.

Award of $750.00.  