UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
July 29, 1940
SOUND MARINE & MACHINE CORPORATION
Appeal from the District Court of the United States for the Southern District of New York.
Before SWAN, CHASE, and CLARK, Circuit Judges.
The libel seeks damages resulting from the laying of a sewer pipe that impaired access by water to the libelant's land. On a prior appeal this court sustained the admiralty jurisdiction of the District Court and remanded the cause for determination of the question whether the sewer pipe was laid in accordance with the permit issued by the War Department. Second Marine & Machine Corp. v. Westchester County, 2 Cir., 100 F.2d 360, certiorari denied, 306 U.S. 642, 59 S. Ct. 582, 83 L. Ed. 1042. The permit, dated October 2, 1929, authorized the respondent "to lay a sewer pipe in a trench * * * in accordance with the plans shown on the drawings attached hereto * * * ." Upon the evidence presented at a hearing held pursuant to our mandate the District Court found as a fact that the sewer pipe was not laid in accordance with the permit, and granted the libelant an interlocutory decree from which the present appeal was taken.
This appeal presents a very narrow issue. Adhering, as we do, to our prior decision as to the law the sole question is whether Judge Clancy's finding of fact is sustainable. The evidence supports it. Much of the sewer was laid on piles capped by timbers upon which the pipe rested. Evidence is lacking of any excavation before the piles were driven. There was a failure of proof that the sewer was laid "in a trench" as the permit required.
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