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NUISANCE

The ground for the denial of injunction, notwithstanding the finding both that there is a nuisance and that plaintiffs have been damaged substantially, is the large disparity in economic consequences of the nuisance and of the injunction. This theory cannot, however, be sustained without overruling a doctrine which has been consistently reaffirmed in several leading cases in this court and which has never been disavowed here, namely that where a nuisance has been found and where there has been any substantial damage shown by the party complaining an injunction will be granted.

The rule in New York has been that such a nuisance will be enjoined although marked disparity be shown in economic consequence between the effect of the injunction and the effect of the nuisance. The problem of disparity in economic consequence was sharply in focus in Whalen v. Union Bag & Paper Co., 208 N.Y. 1, 101 N.E. 805. A pulp mill entailing an investment of more than a million dollars polluted a stream in which plaintiff, who owned a farm, was ‘a lower riparian owner’. The economic loss to plaintiff from this pollution was small. This court, reversing the Appellate Division, reinstated the injunction granted by the Special Term against the argument of the mill owner that in view of ‘the slight advantage to plaintiff and the great loss that will be inflicted on defendant’ an injunction should not be granted [Cc]’Such a balancing of injuries cannot be justified by the circumstances of this case’, Judge Werner noted[.][Cc]. ‘Although the damage to the plaintiff may be slight as compared with the defendant’s expense of abating the condition, that is not a good reason for refusing an injunction’ [Cc]. Thus the unconditional injunction granted at Special Term was reinstated. The rule laid down in that case, then, is that whenever the damage resulting from a nuisance is found not ‘unsubstantial’, viz., $100 a year, injunction would follow. This states a rule that had been followed in this court with marked consistency [Cc

There are cases where injunction has been denied. McCann v. Chasm Power Co., 211 N.Y. 301, 105 N.E. 416 is one of them. There, however, the damage shown by plaintiffs was not only unsubstantial, it was non-existent. Plaintiffs owned a rocky bank of the stream in which defendant had raised the level of the water. This had no economic or other adverse consequence to plaintiffs, and thus injunctive relief was denied. * * * Thus if, within Whalen v. Union Bag & Paper Co., supra which authoritatively states the rule in New York, the damage to plaintiffs in these present cases from defendant’s cement plant is ‘not unsubstantial’, an injunction should follow.

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