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Property II - Briefs - Rothstein

Property II - Briefs - Rothstein - Week One-Assignment 28...

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Week One -- Assignment 28 -- Nuisance ** Boomer v. Atlantic Cement Co. Court of Appeals of NY, 1970 Location – Albany, NY Land owners (P) v. Cement plant (D) NATURE OF CASE: Action to enjoin maintenance of nuisance and for damages. FACT SUMMARY: Trial court refused to issue injunction that would close down a cement plant, but awarded permanent damages instead. RULE OF LAW: Although the rule in New York is that a nuisance will be enjoined even when there is a marked disparity shown in economic consequence between the effect of the injunction and the effect of the nuisance, an injunction should not be applied if the result is to close down a plant. Permanent damages may be awarded as an alternative. FACTS: A group of land owners (P), complaining of injury to their property from dirt, smoke, and vibration emanating from a neighboring cement plant (D), brought an action to enjoin the continued operation of the plant and for damages. The trial court held that the plant constituted a nuisance, found substantial damage but, because an injunction would shut down the plant's operation, refused to issue one. Permanent damages of $185,000 were awarded the group of land owners (P) instead. ISSUE: Where the issuance of an injunction to enjoin the maintenance of a business would shut down a business, may permanent damages be issued as an alternative? HOLDING AND DECISION: (Bergan, J.) Yes. Damages may be awarded as an alternative to an injunction in nuisance cases. Another alternative would be to grant the injunction but postpone its effect to a specified future date to give opportunity for technical advances to permit the company (D) to eliminate the nuisance. However, there is no assurance that any significant technical improvement would occur. Moreover, the problem is universal, and can only be solved by an industry-wide effort. Permanent damages would themselves be a spur to conduct more research. Future owners of this land would not be able to recover additional damages, since the award is to the land. Reversed and remanded.
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DISSENT: (Jasen, J.) The majority approach is licensing a continuing wrong. Furthermore, permanent damages alleviate the need for more research, and decrease incentive. ** Spur Industries, Inc. v. Del E. Webb Development Co. Supreme Court of AZ., 1972 Location – 14 to 15 miles west of Phoenix, AZ Cattle feeding operation (P) v. Housing developer (D) NATURE OF CASE: Suit seeking a permanent injunction. FACT SUMMARY: Del E. Webb Development Co. (D) claimed that the cattle feedlots operated by Spur Industries, Inc. (P) constituted a nuisance which should be abated. RULE OF LAW A pre-existing lawful enterprise may become a nuisance by reason of subsequent development of an area, but a party wishing that nuisance abated must indemnify the operator of the enterprise for the costs of going out of business or relocating.
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Property II - Briefs - Rothstein - Week One-Assignment 28...

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