Boomer v. Atl. Cement Co.

26 N.Y.2d 219, 309 N.Y.S.2d 312, 257 N.E.2d 870 (1970)

 

RULE:

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

FACTS:

Plaintiff landowners neighbored defendant's cement factory. Plaintiffs sought an injunction for property damages from the factory's vibration, smoke, and dirt. The lower court found the factory a nuisance and ordered temporary damages, but denied an injunction.

ISSUE:

Should an injunction issue once a nuisance has been determined despite marked disparity in economic consequence between the effect of the injunction and the effect of the nuisance?

ANSWER:

Yes.

CONCLUSION:

Where a nuisance has been found and where there has been any substantial damage shown by the party complaining an injunction will be granted even if there is marked disparity in economic consequence between the effect of the injunction and the effect of the nuisance. The court found it should not try to lay down a policy for the difficult problem of pollution elimination as the byproduct of private litigation. The court determined permanent damages were allowed where the loss recoverable is small in comparison with the cost of removal of the nuisance. The court further indicated permanent damages were appropriate when there was a continuing and recurrent nuisance, as in this case. The court found it equitable to award plaintiffs permanent damages based on the theory of compensation for servitude on the land which precluded future recovery by plaintiffs or their grantees. The court granted an injunction which was vacatable upon defendant's payment of permanent damages.

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