
    
      Opinion issued January 27, 1983
    
    GENE BRADY BEEGLE vs. DEPARTMENT OF HIGHWAYS AND ST. PAUL’S PROTESTANT EPISCOPAL CHURCH vs. DEPARTMENT OF HIGHWAYS
    (CC-81-248)
    (CC-81-271)
    
      Robert E. Wright, Attorney at Law, for claimants.
    
      Nancy J. Aliff, Attorney at Law, for respondent.
   WALLACE, JUDGE:

The claimants, Gene Brady Beegle and St. Paul’s Protestant Episcopal Church, own adjacent properties on W.Va. Route 2, commonly called Cemetary Hill Road, in Sistersville, Tyler County, West Virginia. These cases were consolidated because the damages alleged arose out of the same incident. In July 1981, during a heavy rainstorm, a portion of the curb on Cemetary Hill Road broke. Water ran down the hillside and into the Beegle home and the church. Claimant Beegle sustained damages of $1,778.00 for replacement of carpeting and a furnace. The church sustained damages of $122.00. Claimants allege that respondent was negligent in failing to maintain the curb.

Mr. Beegle testified that sometime in February 1981, a school bus slid into the curb. This caused the curb to crack. He said that he notified both the City of Sistersville and the respondent prior to July 1981 to fix the curb, but no action was taken until after the damage occurred.

Ray H. Maxwell, a county maintenance superintendent employed by respondent, testified that Cemetary Hill Road was taken into the State system in May of 1972. By agreement between the respondent and the council of the City of Sisters-ville, responsibility for the maintenance of the paved vehicular roadway rested with respondent. All other portions of the roadway were to be maintained by the city.

The evidence indicates that the normal run-off of rain down Cemetary Hill Road was disrupted by the break in the curb. The respondent had actual notice of the damage to the curb. It was foreseeable that the surface water run-off would be diverted by the broken curb. West Virginia adheres to the common law rule that a landowner may fight surface water in whatever manner he chooses, but the rule is modified by the principle that one must use his property so as not to injure the rights of another. 20 M.J., Waters and Watercourses, §5, p. 27. See also Miller v. Dept. of Highways, 13 Ct.Cl. 414 (1981). The Court finds that the respondent was negligent in failing to maintain the curb, and the surface water run-off from respondent’s roadway was the proximate cause of claimants’ damages.

Award of $1,778.00 to Gene Brady Beegle.

Award of $122.00 to St. Paul’s Protestant Episcopal Church.  