and the resident of premises 3805 saw a bulldozer on or near 3801. Of significance, a survey plot of the construction area (Def's exh. 7) disclosed that a temporary gas line was to be installed in the vicinity of the retaining wall of premises 3801 of the construction area (T. 222). And, of further significance was the fact that the Metro contract drawings did not provide for the removal of any retaining wall at 3801 (T. 223). Also of note, as recently as October 1997, construction equipment was on or near the plaintiff's property in connection with the servicing of a water line or meter (T. 240), an activity not directly related to the Metro construction.
I conclude, as a matter of fact, that the retaining wall was not removed by WMATA. It was outside the perimeter fence and was not required to be removed because of the subway construction.
I further find that the plaintiff failed to prove that the collapse of the roof of 3801 was caused by Metro construction activity. The wooden cross members of the roof evidenced dry rot (T. 236) and the masonry pockets on which these cross members rested were wholly intact at the time of a recent investigation by a WMATA-retained engineer (T. 232, 233, 236). In light of the prior testimony of a neighbor who resided at 3805 New Hampshire, N.W., that the roof collapsed following a heavy snow storm on January 13, 1995, the Court finds credible the testimony of the defendant's structural engineer expert witness that the roof collapse was caused by the weight of the snow on the rotted cross members (T. 235). No other damage to the premises is attributed to Metro construction by the plaintiff other than the removal of a plywood entrance cover and iron gate. The Court finds no evidence from which it could conclude that WMATA personnel acting within the scope of their employment removed the plywood and iron gate.
This brings us to a consideration of the plaintiff's claims of nuisance, unauthorized use of his property and negligent excavation.
Conclusions of Law
Massengale's theories of liability are somewhat difficult to understand. As ascertained from his Second Amended Complaint, he seeks damages in the sum of $ 9600.00 ($ 800.00 a month for 12 months) for the unauthorized use of his property when Metro, without his consent, permission or authority, stored "building material, pipes, tool boxes and other equipment used in the construction of a metro train subway" (Count One).
Massengale also contends in a count entitled "nuisance" that WMATA unreasonably interfered with his use and access to his property and that the unauthorized use caused a weakening of the building which led to the collapse of the roof. He seeks $ 2000.00 for roof repairs. But as stated earlier, Massengale offered no evidence regarding the cost of repairs. This count also alleges that because of the roof collapse and the accumulation of trash which he attributed to the Metro construction,
the District of Columbia repeatedly cited him for violations of the District of Columbia regulations.
He asserts that in order to abate these violation notices, WMATA agreed to tear down his building but that it now refuses to do so (Count Two). However, he does not seek any specific relief for breach of this alleged oral contract.
Lastly, in a count entitled "Damage Due to Excavation," Massengale alleges that WMATA "negligently engaged in excavation work which caused considerable shaking of (his) property" and that he was damaged in an undisclosed sum by "shaking vibrations" (Count Three).
In preparation for a final pretrial conference and in accordance with our local rules, Massengale filed a pretrial statement in which he set out his claims as follows:
A. Plaintiff's contention:
Plaintiff claims that without authority, permission or consent of plaintiff, defendant or his agents entered and used plaintiff's premises for storage of his equipment and materials used in construction of Metro Green Line. Plaintiff offered defendant opportunity to abate the nuisance he suffered as a result of defendant's conduct by demolition of his building. Defendant accepted the offer and promised to tear down the building and to level the premises. Defendant failed to honor its promise. Plaintiff also claims damages caused to his property as a result of defendant's excavation work, for the construction of Metro Green Line, in close proximity to plaintiff's property.