George Washington Inn v. Consolidated Engineering Co.

• Decision Date: 28 January 1935
• Docket Number: No. 6193.,6193.
• Citation: George Washington Inn v. Consolidated Engineering Co., 75 F.2d 657, 64 App. DC 138 (D.C. Cir. 1935)
• Parties: GEORGE WASHINGTON INN, Inc., v. CONSOLIDATED ENGINEERING CO., Inc., et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

64 App. DC 138, 75 F.2d 657 (1935)

GEORGE WASHINGTON INN, Inc., v. CONSOLIDATED ENGINEERING CO., Inc., et al.

No. 6193.

United States Court of Appeals for the District of Columbia.

Argued December 3, 1934.

Decided January 28, 1935.

Alvin L. Newmyer and David G. Bress, both of Washington, D. C., for appellant.

John Philip Hill, Francis W. Hill, Jr., E. Barrett Prettyman, Robert E. Lynch, and Vernon E. West, all of Washington, D. C., for appellees.

Before MARTIN, Chief Justice, ROBB, VAN ORSDEL, HITZ, and GRONER, Associate Justices.

HITZ, Associate Justice.

This appeal by the George Washington Inn, Inc., is from a judgment of the Supreme Court of the District of Columbia for the Consolidated Engineering Company, Inc., and the District of Columbia, as defendants in an action for damages.

The declaration in two counts charged maintenance of a nuisance; both defendants demurred; the demurrers were sustained; and the plaintiff electing to stand on its declaration, judgment was entered against it.

The declaration alleges that in March, 1931, and for a long time prior thereto, plaintiff was in the hotel business at New Jersey avenue and C Street Southeast, in the city of Washington.

That this location is one block south of the United States Capitol, that it was widely advertised as such, and the company had thereby built up a large patronage from members of Congress, employees of the Capitol, tourists, and visitors to the city.

That such guests were obliged to use the streets and sidewalks adjacent to the hotel, particularly New Jersey avenue between B and C streets, South Capitol street between B and C streets, and C street between New Jersey avenue and South Capitol street. These streets made three sides of the square immediately north of plaintiff's hotel, and intervening between the hotel and the Capitol building, and are the streets naturally and conveniently used between the hotel, the Capitol, Pennsylvania avenue, and other main thoroughfares.

The declaration alleges the duty of the District of Columbia to the public in general and abutting property owners in particular to keep the public streets as free from obstruction and nuisance as possible, and to prevent others from improperly using or obstructing them.

The declaration further alleges that in disregard of such duty the District of Columbia issued to the defendant company a certain permit, inspection of which has been continuously denied to the plaintiff, but alleged by the corporation defendant to authorize it to close and obstruct said streets and sidewalks during its performance of certain construction work.

The work in question was the erection of an annex to the office building of the House of Representatives on the square north of plaintiff's hotel, and the plaintiff alleges that the closing of the streets was not necessary for the work and was continued for an unreasonably long time, the public in general and the plaintiff in particular being thereby prevented from using said streets, the District of Columbia permitting and acquiescing therein.

And finally that the defendants entirely closed the aforesaid portions of New Jersey avenue and South Capitol street, and partially closed said portion of C street when the circumstances did not so require, to the special and peculiar damage of the plaintiff.

The demurrer of the District of Columbia contends that the declaration pleads conclusions of law; that it does not set forth facts to constitute a cause of action; that the granting of the permit during the construction of a United States government building is a governmental function for which the District of Columbia is not answerable in damages; that it is authorized to temporarily close any street or any portion thereof when in its opinion public safety and convenience require it; and that the proximate cause of the injury, if any, was due to its codefendant and not to the District.

And the codefendant by its demurrer asserts its right to act upon the permit of the District of Columbia; that there is no allegation of negligence in its construction of the permitted obstructions to the streets; that no special damage is alleged; that a municipality is not liable for a defect in a plan for a municipal improvement; and that a contractor making such an improvement in pursuance of such a plan is not liable in damages.

But we are of opinion that the declaration does not state conclusions of law, and that if it set out the case more fully in detail, it would be open to objection as pleading evidence.

As we have heretofore said, "Where the municipality, in its attempts to perform a governmental function, so performs as to commit a nuisance from which an adjacent landowner is damaged in the enjoyment of his ownership, he may have an action for damages." District of Columbia v. Totten, 55 App. D. C. 312, 5 F.(2d) 374, 376, 40 A. L. R. 1461; Palmer v. District of Columbia, 26 App. D. C. 31, 1 L. R. A. (N. S.) 878; Roth v....