26 N.Y.2d 219, 309 N.Y.S.2d 312, 257 N.E.2d 870, 40 A.L.R.3d 590 (1970)
The defendant Atlantic Cement Company operates a large cement plant near Albany.1 Neighboring land owners brought actions for injunction and damages by alleging injury to property from dirt, smoke and vibration emanating from the plant.2 A nuisance has been found after trial, temporary damages have been allowed; but an injunction has been denied.3
The court at Special Term also found the amount of permanent damage attributable to each plaintiff.4 The total of permanent damages to all plaintiffs thus found was $185,000.5 Respondent’s investment in the plant is in excess of $45,000,000.6 There are over 300 people employed there.7 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.8
The orders at Special Term and at the Appellate Division denied the injunction.9 The plant commenced production in 1962.10
Whether neighboring landowners who proved that a cement plant caused substantial damage to their properties through dirt, smoke, and vibration are entitled to an injunction?11
In New York, where a nuisance has been found after trial and substantial damage has been shown, an injunction must be granted even when there is a marked disparity in economic consequences between the effect of the injunction and the effect of the nuisance, as consistently reaffirmed in Whalen v. Union Bag & Paper Co. and prior cases such as McCarty v. Natural Carbonic Gas Co.12
Yes. The ESTABLISHED FACTS establish that after trial a nuisance was found and temporary damages were allowed to the neighboring landowners for injury from dirt, smoke, and vibration emanating from the Atlantic Cement plant that began production in 1962.13 Under the settled rule an injunction follows whenever damage is not unsubstantial.14 The facts here meet that threshold without exception for economic disparity between the $45,000,000 plant investment and the plaintiffs' losses.15
The neighboring landowners are entitled to an injunction because substantial damage from the established nuisance was proven at trial.16
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Judge Jasen agrees reversal is required and that an injunction must issue but diverges on remedy by insisting the injunction take effect in 18 months unless the nuisance is abated.17 He grounds this on the Air Pollution Control Act declaring state policy to require all available reasonable methods to prevent air pollution, the documented public health hazards of particulate contamination from cement plants, and the absence of any public benefit from the private operation.18 In his view allowing permanent damages would license a continuing wrong for private gain, violating the constitutional limit that private property may be taken only for public use with just compensation.19
Whether a court may deny an injunction in such a case and instead require the plant operator to pay permanent damages to the affected landowners?20
A court of equity may condition the continuance of an injunction on payment of permanent damages that compensate for total past and future economic loss.21 This applies when the nuisance is permanent and unabatable in character.22 The approach redresses all injury in one action and prevents multiplicity of suits while balancing the equities between the parties.23
Yes. Although the traditional rule requires an injunction, the ESTABLISHED FACTS show the Special Term and Appellate Division denied injunctive relief because the $185,000 total permanent damages to all plaintiffs was relatively small compared with the defendant's $45,000,000 investment and the consequences of closing a plant employing over 300 people.24 The majority therefore reverses the denial orders. It remits the cases for an injunction that shall be vacated upon payment of permanent damages.25
This applies the equitable principle that full relief in one action serves both the plaintiffs' redress and the avoidance of successive suits while imposing a servitude on the land.26
A court may deny an unconditional injunction and instead require payment of permanent damages when the economic disparity and public interest in continued operation justify conditioning relief to achieve complete justice between the parties.27
Related opinions on this issue
Judge Jasen rejects the permanent-damages alternative outright, arguing it compounds the air-pollution problem by eliminating any incentive for abatement and amounts to inverse condemnation for private gain rather than public use.28 He notes the cement company built the plant in 1962 fully aware of neighboring properties. It installed only the most modern devices then available.29
He would therefore grant an injunction effective after 18 months to allow development of better controls without licensing indefinite pollution upon payment of a fee.30