West Virginia Record

Tuesday, July 23, 2019

Marshall Co. couple says sewer district wrongly built pump station on their property

Lawsuits

By Chris Dickerson | Apr 22, 2019


MOUNDSVILLE – A Marshall County couple says the county sewer district and two contractors wrongly built a sewer system pump station on their property.

Kimberly Kelly and Jeff Gossett filed their complaint April 12 in Marshall Circuit Court against the Marshall County Sewerage District, E.L. Robinson Engineering Company and Mike Enyart And Sons Inc.

According to the complaint, the plaintiffs had owned the property for about a year when the MCSD began construction work on a new sewage system in the Mozart Meadows neighborhood in September 2017. Enyart was the primary construction contractor, and Robinson designed and drafted the system.

The plaintiffs claim the defendants didn’t properly survey prior to drafting plans or starting construction.

“During construction, plaintiff Kimberly Kelly approached Jeff Casto, an employee of E.L. Robinson, who was overseeing the construction by defendants MESI, while sitting in a company truck,” the complaint states. “Ms. Kelly informed Mr. Casto that the pump station they were building was on her property. Mr. Casto denied that the pump station referred to by plaintiff Kelly was on her property.

“Mr. Casto became belligerent and slapped the steering wheel of the truck he was sitting in with papers. He yelled at plaintiff Kelly that it was not on her property and he had the maps right there if she wanted to see it.”

Despite plaintiffs protest, the defendants continued to build the pump station on their property.

Before the completion of the construction, Consolidated Coal Company – which owns the house next to the plaintiff’s home – paid for a property survey. It was “conclusive that the pump station is on plaintiffs’ property.”

They say the station is constructed on about 6 feet of their property, and that the sewer district never initiated any eminent domain actions regarding the construction.

“Plaintiffs have made defendant MCSD aware that the pump station was installed illegally onto their property,” the complaint states. “Plaintiffs have attended board meetings of the MCSD to inform them of this illegality and to discuss remedies. Defendants MCSD has failed to remove the pump station from plaintiffs’ property.”

In addition, the plaintiffs claim an alarm system on the pump station has a visual and audible indicator when there is a problem with the pump. They say it isn’t remotely connected to a device or software to alert the MCSD of a problem, so the sewer district has to rely on the plaintiffs to tell them when the alarm has been activated.

“Plaintiffs’ have never agreed to act on behalf of the MCSD nor are they being compensated for doing so,” the complaint states. “Plaintiffs and their young children have been awakened in the middle of the night as a result of the pump station’s alarm system activating.

“Plaintiffs have no method for deactivating the alarm system in the event it goes off. When the alarm goes off, plaintiffs are at the mercy of MCSD as to when the alarm system can be deactivated.”

Also, the plaintiffs say the sewer district will begin charging fees to all customers living in the service area whether they are hooked up to the system or not. The plaintiffs currently are not connected, but previously had asked for a proposal from MCSD to do so.

“A board member of the MCSD discussed with plaintiffs a monetary solution to plaintiffs’ complaint,” the complaint states. “This monetary resolution was backtracked and plaintiffs were informed that they would not receive monetary compensation.”

The plaintiffs claim the defendants didn’t exercise eminent domain before building the pump station on their property and didn’t compensate them for building the station on their property. They also accuse the defendants of trespassing, nuisance, negligence and civil conspiracy.

They seek compensatory damages, including economic damages, damage to their property, taking of their property, interference of quiet enjoyment of their property, lowering of their property value, mental anguish, annoyance and inconvenience.

They also seek injunctive relief to prevent the use of the pump station and to keep the sewer district from charging a tap fee or from charging for sewer usage if they aren’t using the system.

They also seek attorney fees, court costs and other relief.

The plaintiffs are being represented by Jake Polverini of Toriseva Law in Wheeling. The case has been assigned to Circuit Judge Jeffrey Kramer.

Marshall Circuit Court case number 19-C-61

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