BOOMER V. ATLANTIC CEMENT CO., INC.
309 N.Y.S.2d 312 257 N.E.2d 87 (Court of Appeals of New York, 1970)
Cooter and Ulen, 3rd Edition (www.cooter-ulen.com/cases)


BERGAN, J. Defendant operates a large cement plant near Albany. These are actions for injunction and damages by neighboring land owners alleging injury to property from dirt, smoke and vibration emanating from the plant.

[At the trial court and on appeal, the defendant's cement-making operations were found to be a nuisance to the plaintiff neighbors. Temporary damages were awarded, but an injunction against future dirt, smoke, and vibration from the plant causing the same or greater harms was denied. Plaintiffs have brought this appeal in order to receive the traditional remedy against a nuisance--an injunction.]

The ground for denial of injunction ... 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 consequences between the effect of the injunction and the effect of the nuisance ...

The court at Special Term [the trial court] also found the amount of permanent damage attributable to each plaintiff, for the guidance of the parties in the event both sides stipulated to the payment and acceptance of such permanent damage as a settlement of all the controversies among the parties. The total of permanent damages to all plaintiffs thus found was $185,000 ...

This result ... is a departure from a rule that has become settled; but to follow the rule literally in these cases would be to close down the plant at once. This court is fully agreed to avoid that immediately drastic remedy; the difference in view is how best to avoid it. [Footnote by Court: Atlantic Cement Co.'s investment in the plant is in excess of $45,000,000. There are over 300 people employed there.]

If the injunction were to be granted unless within a short period -- e.g., 18 months -- the nuisance be abated by improved techniques found, there would inevitably be applications to the court at Special Term for extensions of time to perform on showing of good faith efforts to find such techniques. The parties could settle this private litigation at any time if defendant paid enough money and the imminent threat of closing the plant would build up the pressure on defendant ...

Moreover, techniques to eliminate dust and other annoying by-products of cement making are unlikely to be developed by any research the defendant can undertake within any short period, but will depend on the total resources of the cement industry nationwide and throughout the world. The problem is universal wherever cement is made.

For obvious reasons the rate of the research is beyond control of defendant. If at the end of 18 months the whole industry has not found a technical solution, a court would be hard put to close down this one cement plant if due regard be given to equitable principles.

On the other hand, to grant the injunction unless defendant pays plaintiffs such permanent damages as may be fixed by the court seems to do justice between the contending parties. All of the attributions of economic loss to the properties on which plaintiffs' complaints are based will have been redressed ...

It seems reasonable to think that the risk of being required to pay permanent damages to injured property owners by cement plant owners would itself be a reasonably effective spur to research for improved techniques to minimize nuisance ... Thus it seems fair to both sides to grant permanent damages to plaintiffs which will terminate this private litigation ... The judgment, by allowance of permanent damages imposing a servitude on land, which is the basis of the actions, would preclude future recovery by plaintiffs or their grantees.

This should be placed beyond debate by a provision of the judgment that the payment by defendant and the acceptance by plaintiffs of permanent damages found by the court shall be in compensation for a servitude on the land.1

The orders should be reversed, without costs, and the cases remitted to Supreme Court, Albany County, to grant an injunction which shall be vacated upon payment by defendant of such amounts of permanent damage to the respective plaintiffs as shall for this purpose be determined by the court.

JASEN, J., dissenting. I agree with the majority that a reversal is required here, but I do not subscribe to the newly enunciated doctrine of assessment of permanent damages, in lieu of an injunction, where substantial property rights have been impaired by the creation of a nuisance ...

I see grave dangers in overruling our long-established rule of granting an injunction where a nuisance results in substantial continuing damage. In permitting the injunction to become inoperative upon the payment of permanent damages, the majority is, in effect, licensing a continuing wrong. It is the same as saying to the cement company, you may continue to do harm to your neighbors so long as you pay a fee for it. [Authors' emphasis.] Furthermore, once such permanent damages are assessed and paid, the incentive to alleviate the wrong would be eliminated, thereby continuing air pollution of an area without abatement.

It is true that some courts have sanctioned the remedy here proposed by the majority in a number of cases, but none of the authorities relied upon by the majority are analogous to the situation before us. In those cases, the courts, in denying an injunction and awarding money damages, grounded their decision on a showing that the use to which the property was intended to be put was primarily for the public benefit. Here, on the other hand, it is clearly established that the cement company is creating a continuing air pollution nuisance primarily for its own private interest with no public benefit ... The promotion of the interests of the polluting cement company, has, in my opinion, no public use or benefit....

I would enjoin the defendant cement company from continuing the discharge of dust particles upon its neighbors' properties unless, within 18 months, the cement company abated this nuisance ...
 

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1 A "servitude on the land" is a restriction or burden on a piece of real property. The servitude typically "runs with the land," which means that it becomes permanently attached to the particular piece of land and is not, therefore, dependent on the identity of the owner. In our discussion of the case, we will see why the court wishes to make the obligation to pay permanent damages for the nuisance a servitude on the land rather than being a mere obligation to pay particular individuals.