In Boomer v. Atlantic Cement Co., the plaintiff, Oscar H. Boomer, claimed that the defendant, Atlantic Cement Company, had constructed a plant in their vicinity that created vibration, dust, and smoke and that this was a nuisance which prevented full use and enjoyment of the plaintiff’ property. This case is considered one of the most influential cases involving the application of permanent damages in law and economics case law.
In this case, the plaintiff, Oscar H. Boomer, claimed that the defendant, Atlantic Cement Company, had constructed a plant in their vicinity that created vibration, dust, and smoke and that this was a nuisance which prevented full use and enjoyment of the plaintiff’ property. On the other hand, the defendant argued that the vibration, dust, and smoke from their new plant did not cause any significant damage or interferences with the plaintiff’s properties. In this case, the highest court in New York was asked to determine whether permanent damages could be considered an appropriate remedy as a substitute for permanent injunctions. In its ruling, the court granted a temporary injunction against the defendant for nuisance, while also permitting the defendant to pay damages equivalent to the damage caused by the cement plant. Once these permanent damages were paid, according to the court, the temporary injunction would be vacated. Essentially, the defendant was allowed to continue operating the plant with its polluting elements as long as they paid the net present value of these polluting effects.
The most important facts in Boomer v. Atlantic Cement Co. are that the defendant was in operation of a new cement plant, which the plaintiff believed was polluting his property through emissions of smoke, dirt, and vibrations. In turn, these emissions or pollutions were a nuisance to the plaintiff’s property. The legal issue elicited by this argument is whether individual private property owners can resolve litigation in court in equity, or whether the private litigation should be channeled to broader public objectives. Another issue was in regard to when permanent injunctions should be granted to plaintiffs, and when the plaintiffs should be granted permanent damages. The court held that that such litigation should be conducted in equity. In addition, the court also held that trial court can grant injunctions that may be vacated once plaintiffs receive permanent damage payments from the defendants.
The plaintiff’s plea for a permanent injunction was denied, whereas the plea for permanent damages in relation to nuisance caused by the cement plant was granted. On appeal, this decision was further affirmed with the Court of Appeal remitting to grant an injunction until the defendant paid permanent damages to the plaintiff. In supporting the decision, this court held that even in cases where there is marked disparity in economic consequence between the effects of the nuisance and the injunction, the nuisance should still be enjoined. Moreover, in cases where a nuisance causes insignificant damage, this will not be followed by an injunction. The rationale for this decision was that it had never disavowed that the presence of nuisance that caused significant damage would lead to granting of an injunction. Since the plaintiff proved the nuisance caused permanent damages, granting an injunction until payment of permanent damages by the defendant was just and correct. Granting permanent damages to the plaintiff was also fair because the nuisance caused unabated and permanent damage to his property, with the damages covering both past and future damages by the cement plant pollutants.
Finally, based on the concept of ‘servitude on land’ proposed by the theory of damage, payment of damages by the defendant and acceptance of permanent damages by the plaintiff can be considered fair compensation of this servitude on land.
- Boomer v. Atl. Cement Co., 26 N.Y.2d 219, 257 N.E.2d 870, 309 N.Y.S.2d 312 (1970)
