Perry v. Reeve , 12 F.2d 184 ( 1926 )

ROBB, Associate Justice.

Appeal from a decree in th'e Supreme Court of the District, dismissing appellant’s bill - to compel the removal of a division wall and fence, which the appellee Rench had caused to be-erected through Ms contractor, the appellee Reeve.

More than 25 years ago, by agreement between appellant, as owner of premises No. 1536 Sixteenth Street- Northwest, tMs District, and the owner of the adjacent premises, No. 1534 Sixteenth Street, there was erected a division retaining wall some 18 or 20 inches in thickness, approximately half being located upon each of these premises. This wall was surmounted by a wooden division fence. In 1924 appellee Rench, desiring to make certain improvements on Ms premises, ■found it necessary to excavate below the foundation of the division wall: It developing that to underpin the old wall would not be feasible, and that a new wall would make “a much better looking and stronger job than the old wall with underpinning,” notice was given appellant, who thereupon, advised appellees that it would be necessary for them to obtain ■written permission for the removal of the old wall. Without waiting for such permission, appellees proceeded to tear down the old wall and erect in its place a new wall “of approximately the same tMekness and being located in approximately the same place [that is, half on the land of plaintiff and half on the land of defendant Rench] as the old retaining wall,” and also to surmount this wall with a new wooden fence. By the erection of this new wall and fence, appellant’s property was restored to a condition as good as or "better than before. [1,2] According to the testimony of an inspector from the office of the building inspector for the District of Columbia, no permit was required for the erection of this wall. The old wall, having been erected by mutual agreement of adjoinmg owners, established a mutual easement or servitude and benefit, which follow a conveyance of the properties. Fowler v. Koehler, 43 App. D. C. 349, Ann. Cas. 1916E, 1161. The right and duty of the appellee Bench to underpin the old wall, when he excavated below the level of it, is not questioned. Finding it impracticable to underpin the old wall, he voluntarily incurred the expense of replacing the old wall with a new one, that more adequately met conditions, and this he surmounted with a new fence, equally appropriate. In these circumstances, how was appellant prejudiced? The new wall is in the same place as the old, and, under the evidence, apparently more substantial and artistic than the old wall would have been" with underpinmng.

While it might have been better for Mr. Rench to have awaited the written consent of appellant, his failure to do so forms no basis for this action. The decree therefore is affirmed, with costs.

■Affirmed.