Citation. Boomer v. Atlantic Cement Co., 26 N.Y.2d 219, 257 N.E.2d 870, 309 N.Y.S.2d 312, 40 A.L.R.3d 590, 1 ERC (BNA) 1175 (N.Y. Mar. 4, 1970)
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Brief Fact Summary.
The Plaintiffs, Boomer and other neighboring land owners (Plaintiffs), brought a nuisance action against the Defendant, Atlantic Cement Co., Inc.’s (Defendant) neighboring cement plaint, claiming damages and an injunction due to dirt, smoke, and vibrations interfering with their property rights.
Synopsis of Rule of Law.
This court balances the equities between the two parties, refusing to close down a large cement plant even though it creates a nuisance, but allowing neighbors to recover present and future damages created by the nuisance.
Defendant operated a large cement plant. Plaintiffs brought an action for an injunction and damages, alleging injury to their property from dirt, smoke, and vibrations created by the plant. At trial a nuisance was found, temporary damages were allowed, but an injunction was denied.
Was the trial court correct in denying Plaintiffs an injunction when Defendant’s activities are found to create a nuisance, but the value of Defendant’s operation exceeds the nuisance created?
No. Order reversed and case remanded.
* There is a growing public concern for the control of air pollution. The threshold question in this case is if the Court should resolve the litigation between the parties now, or attempt to use this private litigation to define broad public objectives. This court finds that an effective policy for the elimination of air pollution is beyond the scope of this court’s jurisdiction.
* The doctrine applied in New York has been that when a nuisance is found and there has been substantial damage demonstrated by the complaining party, an injunction will be granted regardless of a marked disparity between economic consequences. Following the doctrine in this case would have the effect of closing Defendant’s large plant immediately.
* One alternative would be to issue an injunction, but postpone it until a future date, allowing Defendant the opportunity to develop technical advance to eliminate the nuisance. However, the rate of research is beyond the control of the Defendant and a court would be hard pressed based on equitable principles to close this plant based if it is unable to develop such technology.
Judge Jasen stated that he did not agree with the majority’s new doctrine of permanent damages rather than an injunction when substantial property rights have been impaired. The majority effectively licenses a continuing wrong, with little incentive for the wrong to be eliminated. Additionally, the imposed servitude on Plaintiffs’ land for a private use rather than a public use is unconstitutional.
Most courts take an approach similar to the majority’s in nuisance cases where an injunction is requested, balancing the equities on a case by case basis.