Monday, March 25, 2013

Boomer v. Atlantic Cement Co. case brief

Boomer v. Atlantic Cement Co. case brief
309 N.Y.S.2d 312 (N.Y. 1970)

Plaintiffs sought review of the denial of an injunction against defendant in an action for nuisance, in the Appellate Division of the Supreme Court in the Third Judicial Department (New York).

OVERVIEW: 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.

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.

OUTCOME: The court granted an injunction in plaintiffs' favor which was to be vacated upon defendant's payment of permanent damages to plaintiffs. Permanent damages were appropriate because the nuisance was continuing and recurrent, yet the economic costs of removal of the nuisance were too great.

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