Boomer v. Atlantic Cement Co.

CASE NAME	Oscar H. Boomer et al., Appellants, v. Atlantic Cement Company, Inc., Respondent. (And Five Other Actions.); Charles J. Meilak et al., Appellants, v. Atlantic Cement Company, Inc., Respondent
COURT	Court of Appeals of New York
CITATION, DATE	26 N.Y.2d 219; 257 N.E.2d 870; 309 N.Y.S.2d 312; 1970 N.Y. LEXIS 1478; 1 ERC (BNA) 1175; 40 A.L.R.3d 590. March 4, 1970, Decided

PROCEDURAL HISTORY
TRIAL COURT:		APPEAL COURT (for appeal cases only):
PLAINTIFF	Boomer	APPELLANT	Boomer
DEFENDANT	Atlantic Cement Company, Inc.	RESPONDENT	Atlantic Cement Company, Inc.

DESCRIPTION OF EVENTS
Defendant operates a large cement plant near Albany. These are actions for injunction and damages by neighboring land owners alleging injury to property from dirt, smoke and vibration emanating from the plant. A nuisance has been found after trial, temporary damages have been allowed; but an injunction has been denied.

REMEDY SOUGHT	injunction and damages by neighboring land owners

ARGUMENT FOR PLAINTIFF
injury to property from dirt, smoke and vibration emanating from the plant.

ARGUMENT FOR DEFENDANT
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COURT OPINION
"The public concern with air pollution arising from many sources in industry and in transportation is currently accorded ever wider recognition accompanied by a growing sense of responsibility in State and Federal Governments to control it. Cement plants are obvious sources of air pollution in the neighborhoods where they operate. "But there is now before the court private litigation in which individual property owners have sought specific relief from a single plant operation. The threshold question raised by the division of view on this appeal is whether the court should resolve the litigation between the parties now before it as equitably as seems possible; or whether, seeking promotion of the general public welfare, it should channel private litigation into broad public objectives." " 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." "Effective control of air pollution is a problem presently far from solution even with the full public and financial powers of government. In large measure adequate technical procedures are yet to be developed and some that appear possible may be economically impracticable." "it seems manifest that the judicial establishment is neither equipped in the limited nature of any judgment it can pronounce nor prepared to lay down and implement an effective policy for the elimination of air pollution. This is an area beyond the circumference of one private lawsuit. It is a direct responsibility for government and should not thus be undertaken as an incident to solving a dispute between property owners and a single cement plant -- one of many -- in the Hudson River valley." "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." "The ground for the denial of injunction, notwithstanding the finding both that there is a nuisance and that plaintiffs have been damaged substantially, is the large disparity in economic consequences of the nuisance and of the injunction. This theory cannot, however, be sustained without overruling a doctrine which has been consistently reaffirmed in several leading cases in this court and which has never been disavowed here, namely that where a nuisance has been found and where there has been any substantial damage shown by the party complaining an injunction will be granted." "The rule laid down ... is that whenever the damage resulting from a nuisance is found not "unsubstantial", viz., $ 100 a year, injunction would follow. This states a rule that had been followed in this court with marked consistency" "Although the court at Special Term and the Appellate Division held that injunction should be denied, it was found that plaintiffs had been damaged in various specific amounts up to the time of the trial and damages to the respective plaintiffs were awarded for those amounts. The effect of this was, injunction having been denied, plaintiffs could maintain successive actions at law for damages thereafter as further damage was incurred." "The court at Special Term also found the amount of permanent damage attributable to each plaintiff, for the guidance of the parties in the event both sides stipulated to the payment and acceptance of such permanent damage as a settlement of all the controversies among the parties. The total of permanent damages to all plaintiffs thus found was $ 185,000. This basis of adjustment has not resulted in any stipulation by the parties." "This result at Special Term and at the Appellate Division is a departure from a rule that has become settled; but to follow the rule literally in these cases would be to close down the plant at once. This court is fully agreed to avoid that immediately drastic remedy; the difference in view is how best to avoid it. * [ Footnote: * Respondent's investment in the plant is in excess of $ 45,000,000. There are over 300 people employed there.]" "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; 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. For reasons which will be developed the court chooses the latter alternative." "If the injunction were to be granted unless within a short period -- e.g., 18 months -- the nuisance be abated by improved methods, there would be no assurance that any significant technical improvement would occur." "Moreover, techniques to eliminate dust and other annoying by-products of cement making are unlikely to be developed by any research the defendant can undertake within any short period, but will depend on the total resources of the cement industry Nationwide and throughout the world. The problem is universal wherever cement is made." "For obvious reasons the rate of the research is beyond control of defendant. If at the end of 18 months the whole industry has not found a technical solution a court would be hard put to close down this one cement plant if due regard be given to equitable principles." "On the other hand, to grant the injunction unless defendant pays plaintiffs such permanent damages as may be fixed by the court seems to do justice between the contending parties. All of the attributions of economic loss to the properties on which plaintiffs' complaints are based will have been redressed." "The nuisance complained of by these plaintiffs may have other public or private consequences, but these particular parties are the only ones who have sought remedies and the judgment proposed will fully redress them. The limitation of relief granted is a limitation only within the four corners of these actions and does not foreclose public health or other public agencies from seeking proper relief in a proper court." "The damage base here suggested is consistent with the general rule in those nuisance cases where damages are allowed. "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." ... It has been said that permanent damages are allowed where the loss recoverable would obviously be small as compared with the cost of removal of the nuisance ..." Cited Indiana case of permanent damage on the basis of public interest. Per opinion in that case: "This is upon the general equitable principle that equity will give full relief in one action and prevent a multiplicity of suits" "The judgment, by allowance of permanent damages imposing a servitude on land, which is the basis of the actions, would preclude future recovery by plaintiffs or their grantees...." Dissent by Jasen: "It has long been the rule in this State, as the majority acknowledges, that a nuisance which results in substantial continuing damage to neighbors must be enjoined....To now change the rule to permit the cement company to continue polluting the air indefinitely upon the payment of permanent damages is, in my opinion, compounding the magnitude of a very serious problem in our State and Nation today." "The harmful nature and widespread occurrence of air pollution have been extensively documented. Congressional hearings have revealed that air pollution causes substantial property damage, as well as being a contributing factor to a rising incidence of lung cancer, emphysema, bronchitis and asthma. ..." "It is interesting to note that cement production has recently been identified as a significant source of particulate contamination in the Hudson Valley. This type of pollution, wherein very small particles escape and stay in the atmosphere, has been denominated as the type of air pollution which produces the greatest hazard to human health. We have thus a nuisance which not only is damaging to the plaintiffs, but also is decidedly harmful to the general public." "It is true that some courts have sanctioned the remedy here proposed by the majority in a number of cases, but none of the authorities relied upon by the majority are analogous to the situation before us. In those cases, the courts, in denying an injunction and awarding money damages, grounded their decision on a showing that the use to which the property was intended to be put was primarily for the public benefit. Here, on the other hand, it is clearly established that the cement company is creating a continuing air pollution nuisance primarily for its own private interest with no public benefit." "I am aware that the trial court found that the most modern dust control devices available have been installed in defendant's plant, but, I submit, this does not mean that better and more effective dust control devices could not be developed within the time allowed to abate the pollution. "Moreover, I believe it is incumbent upon the defendant to develop such devices, since the cement company, at the time the plant commenced production (1962), was well aware of the plaintiffs' presence in the area, as well as the probable consequences of its contemplated operation. Yet, it still chose to build and operate the plant at this site."

DISPOSITION OF CASE
"Appeals, by permission of the Court of Appeals, from orders of the Appellate Division of the Supreme Court in the Third Judicial Department, entered November 8, 1968 in the first above-entitled actions, and November 25, 1968 in the second above-entitled action, which unanimously affirmed judgments of the Supreme Court, entered in Albany County upon a decision of the court at a Trial Term (R. Waldron Herzberg, J.; opinion 55 Misc 2d 1023) which, in actions for (1) an injunction restraining defendant Atlantic Cement Company from emitting dust and raw materials and conducting excessive blasting in operating its plant in the Town of Coeymans, in such a manner as to constitute a nuisance upon plaintiffs' lands, buildings and equipment, and (2) damages sustained as a result of the nuisance so created, awarded damages to plaintiffs for the loss of rental or usable value sustained but refused to grant the injunctive relief sought by them." "In each action: Order reversed, without costs, and the case remitted to Supreme Court, Albany County, for further proceedings in accordance with the opinion herein." "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."

ECONOMIC ANALYSIS

Per the court: "It seems reasonable to think that the risk of being required to pay permanent damages to injured property owners by cement plant owners would itself be a reasonable effective spur to research for improved techniques to minimize nuisance."
Per Jasen: "I see grave dangers in overruling our long-established rule of granting an injunction where a nuisance results in substantial continuing damage. In permitting the injunction to become inoperative upon the payment of permanent damages, the majority is, in effect, licensing a continuing wrong. It is the same as saying to the cement company, you may continue to do harm to your neighbors so long as you pay a fee for it. Furthermore, once such permanent damages are assessed and paid, the incentive to alleviate the wrong would be eliminated, thereby continuing air pollution of an area without abatement."

Note:
"servitude on land": A right that grants use of another's property.