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Boomer v. Atlantic Cement Co

Citation. Boomer v. Atlantic Cement Co., 26 N.Y.2d 1020 (N.Y. Apr. 9, 1970).
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Brief Fact Summary.

Atlantic Cement Co.’s (Defendant’s) cement company emitted a large amount of dirt, dust and vibrations, which gave cause to a nuisance. Numerous landowners (Plaintiffs) brought suit to enjoin Defendant from operating his plant.

Synopsis of Rule of Law.

An injunction is not the appropriate remedy in a nuisance case when the defendant is providing an essential product or service to the public. An award of permanent damages is better suited.


Defendant operated a cement plant. This plant emitted a large amount of dirt, smoke, and vibrations, affecting a group of landowners. Plaintiffs brought suit to enjoin Defendant from operating the plant. The court found that the cement plant constituted a nuisance, and that there was substantial damage to Plaintiffs. The court awarded Plaintiffs permanent damages of $185,000.00 and refused to issue an injunction. The trial court reasoned that the total damage to Plaintiffs was small when compared to the value of Defendant’s operation. Plaintiffs appealed.


Must an injunction be issued when a nuisance has been determined to exist and when there are substantial damages shown by the party complaining of the interference?


No. Judgment reversed and remanded as to the award of permanent damages.
* The public concern with air pollution arising from many sources in industry and in transportation is currently accorded ever-wider recognition. The amelioration of air pollution will depend on technical research, on a carefully balanced consideration of the economic impact of close regulation, and the effect on public health. A court should not try to do this on its own as a by-product of private litigation.
* When a nuisance has been found and there has been substantial damage shown by the plaintiff, an injunction will be granted. The rule in New York is that defendant will be enjoined although marked disparity is shown in economic consequence between the effect of the injunction and the effect of the nuisance.
* The court wanted to avoid the immediate drastic remedy of a permanent injunction. Instead, the court pointed to two ways in which Plaintiff may be granted relief. One alternative was to grant the injunction but postpone its effect to a specified future date to give opportunity for technical advances to permit defendant to eliminate the nuisance. Another alternative was to grant the injunction conditioned on the payment of permanent damages to Plaintiff that would compensate them for the total economic loss to their property present and future caused by Defendant’s operation. The court chose the latter alternative.
* The problems with cement plants are universal. The technology required to eliminate the nuisance will come from the cement industry, not the Defendant.
* It seems fair to both sides to grant permanent damages to Plaintiffs, which will terminate this private litigation. The order should be reversed, without costs, and the cases remitted to grant an injunction with shall be vacated upon payment by Defendant of such amounts of permanent damage to the Plaintiffs as shall for this purpose be determined by the court.


(Justice Jasen) This long-standing rule should not be changed when substantial damages are involved. The majority is licensing a continuing wrong. Once these damages are paid, there will be no incentive to alleviate the wrong. Defendant should be given a reasonable time to abate the nuisance, otherwise it should be enjoined.


The majority in this case forced the parties into a settlement. In essence, the Plaintiff will hold Defendant hostage. Plaintiff will seek money out of Defendant. The cement plant will not be shut down. The nuisance will continue and there will be no incentive to abate it. The result that the majority reaches allows Defendant to continue his nuisance so long as it pays for it. As the majority pointed out, courts issue injunctions when a nuisance has been proven. This case is a departure from precedent.

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