Property II, Pages 831–837

Boomer v. Atlantic Cement Co.

Court of Appeals of New York, 1970


Defendant operates a cement plant. Defendant's neighbors filed actions for injunction and damages for injury to property from dirt, smoke, and vibrations coming from the plant. The Appellate Division affirmed.

Procedural History:

Trial court found that a nuisance did exist and cause substantial damage to plaintiffs' properties. It allowed temporary damages therefor, but denied an injunction.


Should the courts impose an injunction that limits defendant's air pollution?

Defendant's Argument:

The large disparity in economic consequences of the nuisance and the injunction justifies denying the injunction.


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[W]here a nuisance has been found and where there has been any substantial damage shown by the party complaining, an injunction will be granted.


  • Air pollution is not a problem that has been solved, and a court cannot do so.

  • Defendant did maintain a nuisance and thereby damaged plaintiffs' properties, but the damage done was, while substantial, small in comparison to the value of defendant's operation and the consequences of the sought injunction.

    • Plaintiffs' total damages are $185,000. Defendant's investment in the plant is over $45,000,000.
    • Nevertheless, New York has never denied an injunction because of the disparity between the economic consequence between the effect of the injunction and the effect of the nuisance, as long as the damage from the nuisance was not "unsubstantial."
  • To grant this injunction now would require defendant to immediately shut down its plant. The two reasonable options are to postpone the injunction to allow defendant to improve its technologies to eliminate its pollution or to grant it conditioned on the payment to plaintiffs for all present and future losses to their properties caused by defendant's operations.

    • As it cannot be guaranteed that defendant will be able to improve its technology in 18 months, the injunction should be granted unless defendant pays plaintiffs permanent damages. This will do justice to both parties and encourage the reduction of pollution.


Yes, an injunction should be imposed by only if defendant does not pay plaintiffs permanent damages. Reversed without costs and remanded to grant an injunction to be vacated upon payment by defendant.

Dissenting Opinion:

Jasen: While this decision should be reversed, permanent damages should not be required where substantial property rights have been impaired by a nuisance. This has not been done in an analogous case. Instead, the rule mentioned by the majority should be followed. To do otherwise is just making the problem worse.

This nuisance harms not only plaintiffs, but also the general public. Allowing this harm to continue as long as defendant pays a fee for it is problematic. This inverse condemnation cannot be used for a company's private benefit, but only for the public good. Plaintiff's business has no public use or benefit.

It is also not constitutionally permissible to impose this servitude upon plaintiffs without their consent merely because they were paid for it.

The company should be given a time limit to develop a means to alleviate this nuisance. It has known of this problem since the plant began eight years ago, and it still chose to build the plant here. This does not deserve acquiescence by the courts.