Boomer v. Atlantic Cement Co. case brief

 Boomer v. Atlantic Cement Co., Court of Appeals of NY, 1970

1. P asks for injunction and alleges damages to property from dirt, smoke and vibration emanating from cement plant.
2. Holding – 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
   1. Even upon finding a nuisance, court permits the D to continue business upon payment of permanent damages and future damages
3. Traditional remedy – Where a nuisance has been found and where there has been any substantial damage shown by the party complaining, an injunction will be granted
4. NY Rule – Based on economic consequences between the effect of the injunction and the effect of nuisance
   1. Plant is worth 45 million
   2. Court comes up with permanent damages = $185,000
   3. Keep plant open even though the P have the legal entitlement
   4. Mandatory license and P sell their right of bringing free from a nuisance
   5. Court abandoned traditional doctrine because had to pay more attention to the economics than the law
5. Dissent – Licensing the D to do wrong and incentive to alleviate the wrong will be eliminated and sends the message that can continue to pollute the air as long as you pay a fee