
    
      Opinion issued January 17, 1968
    
    RUSSELL COLLINS and DAVID GRIFFEY vs. STATE ROAD COMMISSION
    (B-384)
    
      Thomas P. O’Brien, Assistant Attorney General, and
    
      Robert R. Harpold, Jr., Attorney, for respondent.
   Jones, Judge:

This claim was filed before the Attorney General of West Virginia on December 21, 1966 and the evidence offered on behalf of the claimant and the respondent was heard by the Court on November 1, 1967.

Originally, the claim was filed in the name of Russell Collins, but thereafter, because of a question of ownership of the damaged property, an attempt was made to amend the claim by substituting the name of David Griffey as the claimant. Russell Collins, not being represented by counsel, appeared in person and testified at the hearing; and no appearance was made by or on behalf of David Griffey. Upon the taking of testimony, it became apparent to the Court that Russell Collins was the true claimant, and, therefore, any claim which David Griffey may have is hereby disallowed, and consideration by the Court is given only to the claim of Russell Collins.

This claim is controlled by the same facts and circumstances applicable to Claims Nos. B-379 and B-385, all arising from blasting operations conducted by the State Road Commission on West Virginia State Route No. 49, near Lynn, in Mingo County, West Virginia.

It appears from the evidence that on or about August 29, 1966 damage to the claimant’s dwelling house resulted from blasting operations conducted by employees of the State Road Commission pursuant to orders from their superiors to clear and reduce certain rock formations near the highway. Rocks and debris thrown by the blasting fell on the claimant’s dwelling house causing substantial damage to the roof, siding, gutters and spouting. There is no evidence that the claimant was guilty of an act or omission that contributed to the damage sustained.

It is the opinion of the Court that the claimant has proven his claim by a preponderance of the evidence, and that in equity and good conscience the same should be paid by the State of West Virginia.

An estimate of the cost of necessary repairs in the amount of $453.10, made by Matewan Lumber Company, appears to the Court to be fair and reasonable; and it is the judgment of the Court that the claimant, Russell Collins, should recover and he is hereby awarded the sum of $453.10.  