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Boomer v. Atlantic Cement Co.

Citation. 26 N.Y.2d 219, 257 N.E.2d 870, 309 N.Y.S.2d 312 (N.Y. 1970)
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Brief Fact Summary.

Cement waste from Atlantic Cement Co.’s cement plant (worth over $45 million) polluted the air of the area, damaging the nearby properties of Boomer.

Synopsis of Rule of Law.

While an injunction must be granted where a nuisance is found resulting in substantial damages to a plaintiff, the injunction may be vacated conditional on payment of permanent damages where a single recovery can include the whole damage and the loss recoverable would be small compared to the cost of removing the nuisance.


Cement waste from Atlantic Cement Co.’s cement plant (worth over $45 million) polluted the air of the area, damaging the nearby properties of Boomer.


Should the court resolve this private litigation as equitably as possible for the individual property owners, or should it consider this private litigation in the context of the general public welfare?

Regardless of the lens by which the court views the private litigation, was it proper to refuse an injunction against Atlantic Cement Co.?


Reversed to grant an injunction that will be vacated upon payment of permanent damages by Atlantic Cement Co. to Boomer.

The court should resolve this private litigation as equitably as possible for the individual property owners, and not in the context of the general public welfare.

No, the lower courts should not have refused to grant an injunction (though the injunction may be vacated by payment of permanent damages to the plaintiff).


Justice Jasen

The lower courts’ ruling should be reversed, but not to a new doctrine of permanent damages. Instead, an injunction should be required as under the traditional doctrine that an injunction is required when a nuisance occurs that results in substantial damages.

Cement companies like Atlantic Cement Co. have been polluting the air for at least the last 60 years, and the specific type of pollution they create is one of the most hazardous to human health. Allowing Atlantic Cement Co. to continue polluting the air indefinitely compounds the problem of a very serious problem for the general public.

Relaxing the injunction requirement in exchange for payment of permanent damages licenses cement companies to harm people for a certain, one-time fee, eliminating any incentive to alleviate the concern.

While other courts denied an injunction in favor of money damages, those cases can be distinguished from this one because they concerned property intended primarily for the public benefit, while this case involves a cement company creating pollution primarily for its own private interest. Inverse condemnation should only be permitted when the public is primarily served in the taking or impairment of property.


A court’s responsibility is to settle the controversy before it and not use its decision as a purposeful mechanism to achieve direct public objectives, though its decision can be incidental to affect public issues. Solving the public problem of air pollution will take efforts and resources beyond that of the court, so a court should not try to crusade a private litigation matter into being the end-all solution to this problem.

In Whalen, a pulp mill worth over one million dollars polluted a stream that the plaintiff used. The court there found that, while the damage to the plaintiff was small, an injunction should still be granted in spite of the slight advantage to the plaintiff and the great disadvantage to the defendant.

Here, the damage caused by Atlantic Cement Co’s cement plant to Boomer’s properties was relatively small in comparison to the value of the operations of Atlantic Cement Co. However, the law requires that an injunction be granted when a nuisance is found and substantial damage is shown, even if the damage to Boomer is small compared to the costs (or economic consequence) that Atlantic Cement Co. would face due to an injunction.

The lower courts departed from this regular rule of law to avoid the plant being closed down immediately, which would result in the loss of over 300 jobs. Out of the two available alternatives (postpone an injunction to allow for technical advances or require payment of the full $185,000 damages), the Court chose the latter, finding that the $185,000 would compensate Boomer for the total economic loss (present and future) to his property.

The Court reasoned that there was no certainty that new technical advances would present themselves even if the injunction was postponed, and that such advances were beyond the control of Atlantic Cement Co. However, the Court noted, the risk of having to pay permanent damages to injured property owners should provide reasonable incentive to spur research for improved techniques to minimize this nuisance.

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