Boomer v. Atlantic Cement Company, Inc.

Supreme Court of New York, Trial Term · 1971 · Property

PropertyNuisanceDamagesEquitable Reliefprivate nuisancepermanent damagesservitude on landeconomic loss

Facts

Defendant began operating a large cement plant in Ravena in 1962. Neighboring landowners had sued for injunction and damages, alleging injury from dirt, smoke, and vibration emanating from the plant, and the nuisance had previously been established. On retrial in 1971, plaintiffs testified that conditions were the same as before, while defendant showed it had made substantial emission-control improvements, including fuel conversion and new dust-control equipment. The remaining property at issue was the Kinley dairy farm, and the parties presented sharply conflicting expert testimony about value with and without the nuisance.

Issue

How should a court of equity determine the amount of permanent damages for a nuisance when the Court of Appeals has directed that an injunction issue but be vacated upon payment of permanent damages compensating for plaintiffs' total economic loss? More specifically, whether damages should be limited to ordinary fair market value diminution or may also consider broader evidence so long as the award compensates for the servitude imposed on the land without becoming speculative or punitive.

Rule

Permanent damages for this nuisance are the amount that fully compensates the plaintiff for the total economic loss to the property caused by the servitude imposed on the land by defendant's nuisance, including past, present, and future harm. Fair market value with and without the nuisance is an important but not exclusive criterion; the court may consider other valuation evidence, but it must reject punitive, subjective, and unduly speculative measures such as inflated special-market figures or unsupported contract-price demands.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

A stone-processing facility outside Akron, Ohio has been adjudged a continuing private nuisance because dust and vibration regularly affect Lena Ortiz's neighboring acreage. On remand, the trial court must set a single permanent-damages award that will dissolve an injunction once the operator pays it.

Which measure best states how the court should calculate Lena's award?

Explanation. The majority treated permanent damages as compensation for the total economic loss to the property caused by the nuisance's servitude on the land. The award is meant to redress past, present, and future harm in one compensatory sum, not to punish the defendant or to limit recovery to narrow market-date or repair-cost measures. (Derived from Boomer v. Atlantic Cement Company, Inc. (n.d.).)