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Boomer v. Atlantic Cement Company, 257 N.E.2d 870 |
New York Supreme Court |
1970 |
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Chapter |
15 |
Title |
Nuisance |
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Page |
610 |
Topic |
Private Nuisance |
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Quick Notes |
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. Court does not want to shut them down, because there is not a universal remedy for pollution. So, they become creative in giving the Pl - permanent payments for damage. |
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Book Name |
Torts Cases, Problems, And Exercises. Weaver, Third Edition. ISBN: 978-1-4224-7220-0. |
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Issue |
o Whether public policy can be channeled though private litigation? No, because the court cannot implement the policy and it is up to legislation to establish the public policy and implement it. |
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Procedure |
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Trial |
o Nuisance was found after trial, temporary damages have been allowed, but an injunction has been denied. |
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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. |
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Facts |
Rules |
Reason |
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o Pl - Boomer o Df - Atlantic Cement Company What happened? 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 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.
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. o (Court did not follow this rule).
Court does not want to use a formal injunction so they get creative
Affects of denying an injunction o The Pl could maintain successive actions as further damage was incurred. o If the rule was followed the plaint would be shut down.
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. o No assurance technical improvements would occur. 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. 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 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
Holding 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 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. o Licensing the continued wrong. 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.
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Class Notes |
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What type of the relief was the Pl seeking? Injunction to shut down the plant.
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. o (Court did not follow this rule).
How would the cement company say it is not fare?
Should they be put out of business because one homeowner suffered damage? o The home owner is suing for $187,000. o The cost of shutting down the business is much more.
This a good cause to come up with possibilities
Experimental Injunction (Professor Stressed this) 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. o No assurance technical improvements would occur. 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.
Buying Out the Injunction (Settlement) *** Court Goes With This *** 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. 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 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 o Present Damages: Health or property damages that have already occurred. o Future Damages: The value of your house dropping because of the big cement plant.
This was called an equitable servitude. o By allowance of permanent damages imposing a servitude on the land, would preclude future recovery by plaintiffs or their grantees.
Permanent Injunction Addresses the future. Experiment - Futures.
For an injunction to occurs, the Pl has to show that money damages are inadequate and cannot prevent future harm to make your whole.
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