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Boomer v. Atlantic Cement Co

    Brief Fact Summary. Plaintiffs are neighboring landowners of Atlantic Cement Company (Defendant) and have sought an injunction and damages in this suit arising from injuries suffered to their properties from dirt, smoke and vibration. The trial court found a nuisance and awarded temporary damages, but declined to enjoin the Defendant.

    Synopsis of Rule of Law. Ordinarily, when a nuisance is found, an injunction will be ordered to abate the nuisance, but this court created an exception. The court ordered the injunction but it may be lifted if Defendant pays Plaintiffs permanent damages.

    Facts. Plaintiffs are neighboring landowners of the Defendant and have sought an injunction and damages in this suit arising from injuries suffered to their properties from dirt, smoke and vibration. The trial court found a nuisance and awarded temporary damages, but declined to enjoin the Defendant. The plant, if ordered closed, would result in an investment loss by Defendant of $45,000,000.00 and the loss of 300 jobs. The total amount of damage to the Plaintiffs was found to be $185,000.00.

    Issue. Should the court resolve the litigation between the parties as equitably as possible, or should the court seek the promotion of the public welfare and channel the litigation into broad public objectives?

    Held. The court should resolve the litigation as equitably as possible.
    The court should not act, using private litigation, to attempt to effect broad changes which are outside the scope of ordinary judicial power.
    The lower court’s rationale for denying an injunction was due to a large disparity in economic consequences of the nuisance and the injunction.
    The court held that the lower court’s reasoning was flawed because the general rule is that when a nuisance is found and where there has been any substantial damage shown by the party complaining of the nuisance, an injunction should be granted. The court cited prior decisions, which found that an injunction must be granted upon a showing of damage even though the enjoined party would lose a great deal more than the amount of damage suffered by the plaintiff.
    This court held that the most equitable way to resolve the dispute here to award permanent damages to Plaintiffs, which would compensate them for the total economic loss to their property for present and future harm caused by Defendant’s operations. If Defendant failed to make payment as ordered, an injunction would be granted. The court reasoned that the requirement of payment of permanent damages would be an incentive for Defendant to research ways to prevent pollution.
    The theory of damage to Plaintiffs is based on the “servitude on land” of Plaintiffs imposed by Defendant’s nuisance. Thus, the order of the lower court should be reversed with instructions to award permanent damages (which bar the Plaintiffs from bringing a subsequent suit) and to grant an injunction, which will be lifted upon payment of the damages to Plaintiffs.

    Dissent. The dissent would not overrule the standard of granting an injunction when a nuisance is found. The dissent points out that the Defendant can simply pay a one-time fee to the community and continue polluting without regard for public safety.

    Discussion. The court was obviously trying to find a way to avoid the total shut down of the cement plant. The opinion also discusses the idea of incentives to clean the plants operations. Did the court offer a disincentive, as the dissent argues, whereby the Defendant, upon payment of a mere $185,000.00, has a license to pollute?


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