
    OPINION ISSUED DECEMBER 12, 1986
    ROYAL RESOURCES CORPORATION VS. DEPARTMENT OF HIGHWAYS
    (CC-86-23)
    Russell Clawges, Jr., Attorney at Law, for Nancy J. Aliff, Attorney at Law, for respondent.
   PER CURIAM:

On December 11, 1985, Edwin T. Stitt was operating a 1984 Lincoln automobile owned by claimant company, of which he is president, at the intersection of Locust Avenue and Country Club Drive, in Fairmont, Marion County. The vehicle struck a hole and drain at this location and sustained damages. Claimant company originally sought $1,090.69 in damages. At the close of the case, claimant's counsel amended the damage amount to $2,500.00.

Albert David, part owner of the ground and the Five Star Convenience Store business, testified that respondent put the storm drain in. Prior to December 1985, barrels had been placed in the hole. He could not say whether or not respondent had placed the barrels.

Edwin T. Stitt testified that the incident occurred at approximately 9:00 p.m. It was dark at the time. He, accompanied by his son, was travelling to the Five Star Convenience Store. The vehicle ran into the hole and storm drain or grate which,is located along Country Club Drive and the parking lot to the convenience store. He stated that there were neither markings, yellow lines, nor a barrel in the vicinity of this drain and hole, lie drove this route several times a month, but he did not remember whether he noticed the hole.

Dwayne Allen Miller, County Assistant Supervisor, Marion County, for respondent testified that the drain in the vicinity of Country Club Road and U.S. Route 19 is located 15 feet from the center line of Country Club Road. He stated that to his knowledge, it is off respondent|s right-of-way. Prior to December 11, 1985, he had not received, nor did he know of, any complaints with regard to this drain. He stated that respondent did place a barrel in this drain in December 1985.

The Court is unable to discern from the testimony presented who maintains control over the drain at the location of this accident. The Court is unable to grant an award based on speculation. For that reason, the Court is of the opinion to, and does, disallow the claim.

Claim disallowed.  