Opinion
P. Bateman Ennis, of Washington, D.C., for plaintiffs.
John J. Donnelly, Jr. and Oliver Gasch, Asst. Corp. Counsel, both of Washington, D.C., for defendant.
HOLTZOFF, District Judge.
This case comes on for a hearing on the defendant's motion for a summary judgment. The plaintiffs sue the District of Columbia to recover damages caused to their property, which abuts on Peabody Street, N.E., in the city of Washington, as a result of a change of the natural grade of Peabody Street.
It may well be that the plaintiffs were damaged as a result of the action of the District of Columbia. The United States Court of Appeals for the District of Columbia held, however, in Osborne v. District of Columbia, 63 App.D.C. 277, 72 F.2d 70, 71, that: 'The right of the District of Columbia * * * to grade and regrade its streets without liability for consequential damages, is established.'
Accordingly, the law in this jurisdiction is that such damages as were sustained by the plaintiffs must be deemed damnum absque injuria.
There are expressions in District of Columbia v. Atchison, 31 App.D.C. 250, indicating that if the work is done negligently the District of Columbia may be liable for damages resulting from its negligence. There is indeed an allegation of negligence in the amended complaint. By interrogatories submitted by the defendant, the plaintiffs were required to specify the acts of negligence on which they rely. The reply to the interrogatories does not indicate that any actual negligence in the manner in which the work was done is claimed, but that the plaintiffs contend that they have a right to recover because of the nature of the work itself.
In the light of the authorities, the Court is constrained to hold that the plaintiffs have no cause of action and, for that reason, the defendant's motion for a summary judgment will be granted.