
    
      Opinion issued November 10, 1980
    
    EMIT JENNINGS, JR. and VICTORIA JENNINGS vs. DEPARTMENT OF HIGHWAYS
    (CC-79-216)
    
      Eugene D. Pécora, Attorney at Law, for claimants.
    
      Nancy J. Aliff, Attorney at Law, for respondent.
   WALLACE, JUDGE:

In this case the claimants seek recovery in the amount of $1,050.00 from respondent for damages sustained to their property caused by excessive surface water.

The claimants had owned two lots in a rural subdivision in Raleigh County, West Virginia, for approximately three years. They were designated as Lots 4 and 5 in a subdivision known as Baylor Subdivision. The lots faced on an unimproved road in the subdivision and were about ninety feet below West Virginia Route 41 on Badoff Mountain. They were also below the level of the subdivision road. Owners of adjacent lots had filled in their lots to the road level.

Claimants had commenced the construction of a house. The foundation was complete and a septic tank had been installed.

There was a slide area running approximately 120 feet on Route 41 on the mountain above claimants’ property. The respondent had attempted to stabilize the slide to no avail. An 18” culvert was installed about 20 feet above an existing stopped-up drain in the slide to carry off drainage water.

On May 10, 1979, there was a violent rainstorm in the area washing out the shoulder on Route 41. Water came down the hollow and also down the mountain along and over the subdivision road flooding claimants’ property, washing out the septic tank and claimants’ garden.

Claimants contend that the installation of the 18” culvert in the slide area to replace the clogged one was the cause of their damage; that there was no water problem until the new one was installed. However, no complaint was made until the storm of May 10th.

From the record the Court finds that the damage was a result of a combination of natural conditions. The location of claimants’ property lower than the adjoining lots and the natural flow of surface water down the subdivision road as well as down the mountain side were all contributory factors. To hold that the drainpipe installed in the slide area was the direct and proximate cause of the damage sustained would be an untenable finding of fact, unwarranted by the evidence. See Wotring v. Dept. of Highways, 12 Ct. Cl. 162 (1978). The water from the heavy rain followed its natural course down the slope of the mountain as well as through the hollow onto the subdivision road and onto claimants’ property. For the reasons herein stated, the Court disallows the claim.

Claim disallowed.  