Private litigation to achieve Public Policy
It is a rare exercise of judicial power to use a decision in
private litigation as a purposeful mechanism to achieve direct
public objectives greatly beyond the rights and interests before
Technical solutions are not yet developed.
Governments responsibility to implement policy
court is not equipped to implement the public policy and it is
the governments responsible.
Pl - Damages
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.
Ground for Denying an Injunction
If there is a large disparity in economic consequences of the
nuisance and of the injunction.
Where a nuisance has been found and where there has been any
substantial damage shown by the party complaining an
injunction will be granted.
Whalen v. Union Bag
pulp mill polluted a stream which affected the Pl - farm.
Economic loss to the Pl was small.
Even though their damage was unsubstantial they received a money
injunction per year.
Cases where an injunction was denied
McCann v. Chasm Power Co.
the damage shown by plaintiffs was not only unsubstantial, it
Plaintiffs owned a rocky bank of the stream in which defendant
had raised the level of the water.
This had no economic or other adverse consequence to plaintiffs,
and thus injunctive relief was denied.
Forstmann v. Joray Holding Co.
Where no benefit to plaintiffs could be seen from the
The rule in New York, the damage to plaintiffs in these present
cases from defendant's cement plant is "not unsubstantial", an
injunction should follow.
Court does not want to use a formal injunction so they get
Injunction was denied, but Pl maintained successive actions
The Pl had been damaged in various specific amounts up to the
time of trial.
Damages were awarded to the Pls.
The effect was that the injunction was denied; HOWEVER, the Pl -
could maintain successive actions at law as further damage was
Total damages $185,000.
NOTE: If the traditional rule was actually followed, the plant
would have to be shutdown.
One alternative is to grant the injunction but
postpone its effect to a specified future date to
give opportunity for technical
advances to permit defendant to eliminate the nuisance.
There is no assurance technical improvements would occur in 18
Unlikely that an individual plant to research and develop a
solution to a universal problem.
If industry cannot solve the problem it is not fair to shut down
Another is to grant the injunction conditioned on the payment
of permanent damages to plaintiffs which would compensate
them for the total economic loss to their property present
and future caused by defendant's operations. (Court
chose this alternative).
To grant permanent fixed payments seems to grant justice between
Payments would spur research.
Prevent further litigation of the Pls.
Further litigation would be precluded.
Limitation: Only addresses the 4 corners and not public health.
The theory of damage is the "servitude on land" of plaintiffs
imposed by defendant's nuisance
- Similar to Northern Indiana
Public Serv. Co. v. Vesey
The gases, odors, ammonia and smoke from the Northern Indiana
company's gas plant damaged the nearby Vesey greenhouse
An injunction and damages were sought, but an injunction was
denied and the relief granted was limited to permanent damages
"present, past, and future".
This is upon the general equitable principle that equity will
give full relief in one action and prevent a multiplicity of
City of Amarillo v. Ware
and recurrent nuisance)
It was held that in this type of continuing and recurrent
nuisance permanent damages were appropriate.
Where recurring overflows from a system of storm sewers were
treated as the kind of nuisance for which
permanent depreciation of value
of affected property would be recoverable.
Pappenheim v. Metropolitan
Decisions in these elevated railway cases were based on the
finding that the railways created a nuisance as to adjacent
property owners, but in lieu of enjoining their operation, the
court allowed permanent damages.
Payment by the Df - and acceptance by the Pl - of permanent
damages found by the court shall be in compensation for the
servitude on the land.
The orders should be reversed, without costs, and the
cases remitted to Supreme Court, Albany County to grant an
injunction which shall be vacated upon payment by defendant of
such amounts of permanent damage to the respective plaintiffs as
shall for this purpose be determined by the court.
Agrees with majority that reverse is required.
Does not agree to the assessment of permanent damages in lieu of
an injunction, where substantial property rights have been
This solution will compound the magnitude of the pollution
Air Pollution Control Act
In recognition of this problem, the
Legislature of this State has
enacted the Air Pollution Control Act declaring that it
is the State policy to require the use of all available and
reasonable methods to prevent and control air pollution.
Air pollution causes both property damages and health issues.
Cement product has been indentified as harmful.
Disadvantages of Majorities Solution
The nuisance results in substantial continuing damage.
Licensing the continued wrong.
You can continue to damage, as long as you pay a fee for it.
No incentive to eliminate the wrong.
Inverse condemnation should only be permitted when the public is
primarily served in the taking or impairment of property.
Servitude on land
Not constitutionally permissible to impose servitude on land,
without consent of
the owner, by payment of permanent damages where the continuing
impairment of the land is for a private use.
This is made clear by the State Constitution which provides that
"[private] property shall not
be taken for public use without just compensation." It
is, of course, significant that the section makes no mention of
taking for a private use.
Prohibit the cement company to continue UNLESS problem was fixed
in 18 months.
This would allow the company a specified period of time to
development a means to alleviate this nuisance.
The industry should not expect acquiescence [passive assent
without protest] by the courts.
Grant injunction to take effect 18 months, unless the nuisance
is abated by improved techniques prior to said date.