Boomer v Atlantic Cement Co.
Ct of App NY  [1970]
Author:- Sam Biers

Nuisance-Rights of Neighbors

Relevant Facts: Df operates a cement plant and the Pl is a neighboring landowner complaining that dirt, smoke, and vibrations emanating from the plant are a nuisance to his property, and the trial ct agreed.

Legal Issue(s): Whether the ct can resolve litigation between private individual property owners in equity, or whether it should channel private litigation into broad public objectives?

Court’s Holding: Resolve litigation in equity.

Procedure: Trial ct denied Pl’s injunction, awarded nuisance damages to Pl; App Div affirmed; Ct of App Reversed and remitted to grant an injunction until payment by Df of damages.

Law or Rule(s): 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. Whenever the damage resulting from a nuisance is found not unsubstantial an injunction will not follow.

Court Rationale: This Ct has never disavowed that where a nuisance has been found and where there has been any substantial damage shown an injunction will be granted.  The permanent damages to Pl was determined.  To grant an injunction UNLESS Df pays Pls their permanent damages does justice btwn the parties.  CJA - Where a nuisance is of such a permanent and unabatable character that a single recovery can be had, including the whole damage past and future resulting therefrom, there can be but one recovery.  Thus it seems fair to both sides to grant permanent damages to Pls which will terminate this private litigation. The theory of damage is “servitude on land” of Pls by Df’s nuisance.  Payment by the Df and the acceptance by the Pl of permanent damages shall be compensation of the servitude on the land.

Plaintiff’s Argument: The cement plant creating dust, smoke and vibration is nuisance which prevents full enjoyment and use of Pls’ properties.

Defendant’s Argument: The dust, smoke and vibration do not substantially interfere or damage the Pls’ properties.

DISSENT: A nuisance which results in substantial continuing damage to neighbors must be enjoined.  To permit the cement company to continue polluting the air indefinitely upon the payment of permanent damages is compounding the magnitude of a serious state and national problem.   The effect is to give license to a continuing wrong.  The plant may continue to cause harm to its neighbors so long as they pay for it.