By: Lydia Crawley
The Parsons Advocate
A lawsuit filed against the West Virginia Department of Transportation by Ivan Eye and others was heard in a pretrial hearing before Judge Ryan on January 18. Eye appeared in court along with his attorney Pat Nichols. The Department of Transportation was represented by their attorney Mr. Macounaughey in the matter surrounding a vacated and rerouted section of Route 115 and Eye’s access to his drive and property.
Macounaughey presented a motion for summary judgment to the court. As a part of his motion, Macounaughey presented exhibit photographs of the property in question. Judge Ryan allowed the photos, but said he would have preferred they be submitted with the motion. “I would have liked to have those attached to a motion,” Judge Ryan said.
Macounaughey said that Eye had not suffered any impact to his access point and further said that the design of his driveway had been the same since the property was purchased 12 years ago. Macounaughey also disputed Eye’s claims regarding a requirement of due care and a claim of negligence. “There’s been no impact to his right of access,” Macounaughey said.
Other arguments by Macounaughey in the motion for summary judgment also included that while part of the area was part of an condemnation hearing, the location of Eye’s driveway was not part of it. The area in the condemnation proceedings involved the dead end and earthen mound created there as part of the Corridor H Project, according to Macounaughey. Macounaughey also said that the dead end for the Route 115 was located past Eye’s drive and therefore did not impact access to the property that was located on a hill. “The state does not guarantee you an easy way to your front door,” Macounaughey said. “It guarantees a way to your front door.”
According to Macounaughey, Eye was requesting $241,000 to fix the driveway. Macounaughey equated the amount to being near what the total property was worth. The argument was also made by Macounaughey that Eye only had property interest in what was located within his own boundaries and he had no property interest in the road itself.
In his arguments, Nichols stated that the area has been the subject of estimates by contractors. The estimates were to complete work on the drive for accessibility, according to Nichols. Nichols also stated that Eye can no longer get large equipment to his property. Nichols said that Eye still owned several pieces of large equipment that he can no longer get down his driveway.
Nichols further claimed that while the WVDOT had made a small landing to assist with access, the area provided did not accommodate even a small box truck owned by Eye. Nichols did acknowledge the State’s right to change the road. “I can see that the State has the right to alter a county road,” Nichols said.
Nichols went on to say that the issue of compensation versus diminution of value would be up to the court. Nichols also said that diminution of value would not rectify Eye’s situation. As part of the discussion on the issue of what, if any compensation would apply to Eye’s case, Nichols said he anticipated the WVDOT’s next step to be a claim of limited immunity, should the case proceed. “I’m expecting the argument as the next step,” Nichols said.
Nichols also requested that with the question of damages or diminution of value, that should the court determine that damages are not applicable in the case, that the motion be amended for diminution of value. Macounaughey said that should that route be taken, it is only the State that can condemn property. According to Macounaughey, the WVDOT would have to be the ones to initiate condemnation proceedings. “If we go that route, what are we condemning?” Macounaughey said.
Judge Ryan said that the attorneys had asked for a 6 week discovery period in the case. Ryan also voiced frustration with Macounaughey over what appeared to be a lack of discovery that had been done.
No immediate action was taken on the motion for summary judgment. Judge Ryan ordered that all findings and conclusions be presented to him within 14 days and the issue of establishing a trial date would be determined at that time if it was deemed needed.