
    
      OPINION ISSUED JANUARY 15, 1986
    
    HENRY BURGER AND GERALDINE BURGER VS. DEPARTMENT OF HIGHWAYS
    (CC-82-181)
    Michael W. McGuane, Attorney at Law, for claimant.
    Nancy J. Aliff, Attorney at Law, for respondent.
   GRACEY, JUDGE:

Claimants seek an award of $80,000.00 for the near total destruction of their dwelling house and real estate located at Ruth Avenue in Mozart, Marshall.County, West Virginia. Claimants allege that respondent's failure to properly design and maintain the drainage system in the area caused a landslide, which rendered the claimants' property nearly valueless. Respondent contends that the property damage resulted from a torrential rainstorm on August 17, 1980, from a separation and a break in a water line owned by the City of Wheeling, which occurred after the storm, and from the two to one hillside topography there. Claimants sued the City of Wheeling, owner of the water line, in the Circuit Court of Marshall County, and received a $50,000 settlement in about November 1983.

Except for the in open court testimony of Henry Burger, one of the claimants, the evidence was presented by depositions.

Claimants' property, listed for sale in May 1980 at $45,000.00, is on the downhill side of Ruth Avenue. On the uphill side of Ruth Avenue, and generally parallel thereto, is Carl Street which is Route 3/1. Ruth Avenue is a Delta Road, taken into the state road system in 1967. An 18-inch culvert carries surface water under Carl Street. An open drain carries the water downhill to where an 8-inch casing takes it under Ruth Avenue. There was no evidence showing when or by whom the 8-inch casing under Ruth Avenue was installed. The claimants' property is off to the side from the 8-inch casing.

Claimant, Henry Burger, testified that on August 18, 1980, the water main in Ruth Avenue broke, causing a five foot geyser of water in the street. This occurred the day after the rainstorm, following which Marshall County was declared a disaster area. Within two weeks, cracks began to appear in the foundation of claimants' home. Damage to the home progressed and claimants moved out on May 10, 1981.

Donnie L. Bensenhaver, Maintenance Assistant in District 6, testified that he first visited claimants' property on September 5, 1980. This visit was made in response to complaints by the claimants and a neighbor. Mr. Bensenhaver said that the 8-inch casing would not handle a heavy rain like the one which occurred on August 17, 1980. He said that the ground was such that a saturation of the soil could cause sliding. The addition of the water from the water main would serve to exacerbate a slide.

Several of the claimants' neighbors testified about a previous flood on Labor Day 1975, which caused slide movement in the area. The neighbors also testified that the Ruth Avenue drain would periodically become clogged with debris, one neighbor, Glenna Nelson, testified that there is a spring which flows through her basement.

After careful consideration of all the evidence presented, the Court concludes that the damage to claimants' property resulted from a combination of factors. The primary factor was the heavy rainfall on August 17, 1980. This produced a super saturation of the soil, precipitating the landslide. A separation of a water main joint and water main break under Ruth Avenue aggravated this situation as did the presence of underground springs. It is unclear whether the drain on Ruth Avenue was clogged prior to the rain or became clogged because of the rain. The Court finds that the proximate cause of, claimants' property damage was the excessive rainfall that occurred and water from the water main, saturating the hillside and causing the slide; that there was no negligence proven on the part of the respondent. In view of this finding, the Court must disallow the claim.

Claim disallowed.  