254 F2d 336 Bowsher v. Empire Engineering Corporation

254 F.2d 336

Mark C. BOWSHER and Arline P. Bowsher, Appellants,

No. 14121.

United States Court of Appeals District of Columbia Circuit.

Argued February 4, 1958.

Decided March 13, 1958.

Petition for Rehearing Denied May 9, 1958.

Mr. Milton M. Burke, Washington, D. C., with whom Mr. Mark C. Bowsher, Washington, D. C., was on the brief, for appellants.

Mr. Lewis H. Shapiro, Washington, D. C., with whom Mr. Charles H. Mayer, Washington, D. C., was on the brief, for appellees Empire Engineering Corp. and Benjamin Shapiro.

No appearance was entered for appellee Dunlap.

Before PRETTYMAN, BAZELON and BURGER, Circuit Judges.


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This was an action to recover damages for trespass and deprivation of lateral support to a vacant lot owned by appellants. Appellee Empire Corporation (whose manager was appellee Shapiro) owned land adjacent to appellants' land and on a lower level. The two parcels were separated by a 10 feet wide unimproved strip which was dedicated to the District of Columbia and was available to be graded as an alley in the future. Desirous of having the alley graded as soon as possible, so as to benefit its own parcel, Empire was granted a permit by the District to have the alley graded at its own expense. It hired an independent contractor, appellee Dunlap, to cut and grade the alley into the hillside in accordance with specifications furnished by the District. In the process, Dunlap dug away some of appellants' land, and also, when the job was finished, a sheer cliff some 16 feet high at one point existed between appellants' land and the alley below. Appellant recovered $1,555 against Dunlap for the trespass, but nothing for loss of support. We have examined the record in the District Court and find no error which warrants reversal. Had the District itself graded the alley, there could be no recovery for deprivation of lateral support. Smith v. Corporation of Washington, 1857, 20 How. 135, 61 U.S. 135, 15 L.Ed. 858.