Boomer v. Atlantic Cement Company, 257 N.E.2d 870

New York Supreme Court

1970

Chapter

28

Title

Nuisance

Page

549

Topic

Private Nuisance

Quick Notes

Cement factor is polluting and damages private property.  Court does not want to shut them down, because there is not a universal remedy for pollution.  So, they become creative in give the Pl - permanent payments for damage.

Ground for Denying an Injunction

o         If there is a large disparity in economic consequences of the nuisance and of the injunction.

Nuisance Rule

o         Where a nuisance has been found and where there has been any substantial damage shown by the party complaining an injunction will be granted. 

Court - Holding

o         Payment by the Df - and acceptance by the Pl - of permanent damages found by the court shall be in compensation for the servitude on the land.

o         The orders should be reversed, without costs, and the cases remitted to Supreme

Book Name

Fundamentals of Modern Property Law: Rabin; Kwall, Kwall.  ISBN:  978-1-59941-053-1.

Issue

o         Whether companies that serve the general public should be shut down for a continued nuisance of pollution?  No, but you can fine them.

Procedure

Trial

o         Nuisance was found after trial, temporary damages have been allowed, but an injunction has been denied.

Appellant

o         Reversed.  Injunction should be denied.

Supreme

o         Reversed, and case remitted to Supreme Court to grant injunction which shall be vacated upon payment by defendant of such amount of permanent damage to the respective Pls.

Facts/Cases

Rules

Reason

o         Pl - Boomer

o         Df - Atlantic Cement Company

What happened?

o         Neighboring land owners are alleging injury to property from dirt, smoke and vibrations emanating from the plant.

o         Seeking specific relief from a single plant.

o         The cement plant is polluting the air with dust particles that are not only harmful to human health, but are also damaging nearby public property.

Trial Court

o         Nuisance was found after trial, temporary damages have been allowed, but an injunction has been denied

o         A total payment of permanent damages was $185,000.

Private litigation to achieve Public Policy

o         It is a rare exercise of judicial power to use a decision in private litigation as a purposeful mechanism to achieve direct public objectives greatly beyond the rights and interests before the court

o         Technical solutions are not yet developed.

Governments responsibility to implement policy

o         A court is not equipped to implement the public policy and it is the governments responsible.

Pl - Damages

o         The total damage to plaintiffs' properties is, however, relatively small in comparison with the value of defendant's operation and with the consequences of the injunction which plaintiffs seek.

Ground for Denying an Injunction

o         If there is a large disparity in economic consequences of the nuisance and of the injunction.

Nuisance Rule

o         Where a nuisance has been found and where there has been any substantial damage shown by the party complaining an injunction will be granted. 

Whalen v. Union Bag

o         A pulp mill polluted a stream which affected the Pl - farm.

o         Economic loss to the Pl was small.

o         Even though their damage was unsubstantial they received a money injunction per year.

Cases where an injunction was denied

McCann v. Chasm Power Co.

o         the damage shown by plaintiffs was not only unsubstantial, it was non-existent.

o         Plaintiffs owned a rocky bank of the stream in which defendant had raised the level of the water.

o         This had no economic or other adverse consequence to plaintiffs, and thus injunctive relief was denied.

Forstmann v. Joray Holding Co.

o          Where no benefit to plaintiffs could be seen from the injunction sought.

o         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.

Court does not want to use a formal injunction so they get creative

Injunction was denied, but Pl maintained successive actions

o         The Pl had been damaged in various specific amounts up to the time of trial.

o         Damages were awarded to the Pls.

o         The effect was that the injunction was denied; HOWEVER, the Pl - could maintain successive actions at law as further damage was incurred.

o         Total damages $185,000.

o         NOTE:  If the traditional rule was actually followed, the plant would have to be shutdown.

Injunction Alternative

1.  One alternative is 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.

Disadvantages

o    There is no assurance technical improvements would occur in 18 months.

o    Unlikely that an individual plant to research and develop a solution to a universal problem.

o    If industry cannot solve the problem it is not fair to shut down one plant.

2.  Another is to grant the injunction conditioned on the payment of permanent damages to plaintiffs which would compensate them for the total economic loss to their property present and future caused by defendant's operations.  (Court chose this alternative).

Advantages

o    To grant permanent fixed payments seems to grant justice between the parties.

o    Payments would spur research.

o    Prevent further litigation of the Pls.

o    Further litigation would be precluded.

Disadvantages

o    Limitation:  Only addresses the 4 corners and not public health.

o    The theory of damage is the "servitude on land" of plaintiffs imposed by defendant's nuisance

Court - Similar to Northern Indiana Public Serv. Co. v. Vesey

o         The gases, odors, ammonia and smoke from the Northern Indiana company's gas plant damaged the nearby Vesey greenhouse operation.

o         An injunction and damages were sought, but an injunction was denied and the relief granted was limited to permanent damages "present, past, and future".

Principle

o         This is upon the general equitable principle that equity will give full relief in one action and prevent a multiplicity of suits

City of Amarillo v. Ware (continuing and recurrent nuisance)

o         It was held that in this type of continuing and recurrent nuisance permanent damages were appropriate.

o         Where recurring overflows from a system of storm sewers were treated as the kind of nuisance for which permanent depreciation of value of affected property would be recoverable.

Pappenheim v. Metropolitan

o         Decisions in these elevated railway cases were based on the finding that the railways created a nuisance as to adjacent property owners, but in lieu of enjoining their operation, the court allowed permanent damages.

Court - Holding

o         Payment by the Df - and acceptance by the Pl - of permanent damages found by the court shall be in compensation for the servitude on the land.

o         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.

DISSENT (Jasen)

o         Agrees with majority that reverse is required.

o         Does not agree to the assessment of permanent damages in lieu of an injunction, where substantial property rights have been impaired.

This solution will compound the magnitude of the pollution problem

Air Pollution Control Act

o         In recognition of this problem, the Legislature of this State has enacted the Air Pollution Control Act declaring that it is the State policy to require the use of all available and reasonable methods to prevent and control air pollution.

o         Air pollution causes both property damages and health issues.

o         Cement product has been indentified as harmful.

Disadvantages of Majorities Solution

o         The nuisance results in substantial continuing damage.

o         Licensing the continued wrong.

o         You can continue to damage, as long as you pay a fee for it.

o         No incentive to eliminate the wrong.

Inverse Condemnation

o         Inverse condemnation should only be permitted when the public is primarily served in the taking or impairment of property.

Servitude on land

o         Not constitutionally permissible to impose servitude on land, without consent of the owner, by payment of permanent damages where the continuing impairment of the land is for a private use.

o         This is made clear by the State Constitution which provides that "[private] property shall not be taken for public use without just compensation."  It is, of course, significant that the section makes no mention of taking for a private use.

JASENs Plan

o         Prohibit the cement company to continue UNLESS problem was fixed in 18 months.

o         This would allow the company a specified period of time to development a means to alleviate this nuisance.

o         The industry should not expect acquiescence [passive assent without protest] by the courts.

HOLDING

o         Reversed

o         Grant injunction to take effect 18 months, unless the nuisance is abated by improved techniques prior to said date.

Rules

Ground for Denying an Injunction

o         If there is a large disparity in economic consequences of the nuisance and of the injunction.

Nuisance Rule

o         Where a nuisance has been found and where there has been any substantial damage shown by the party complaining an injunction will be granted. 

Class Notes

o