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 the
solutions are not yet developed.
A court is
not equipped to implement the public policy and it is the
Pl - Damages
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.
nuisance has been found and where there has been any substantial
damage shown by the party complaining an
injunction will be granted.
not follow this rule).
Court does not want to use a formal injunction so they get
denying an injunction
The Pl could
maintain successive actions as further damage was incurred.
If the rule
was followed the plaint would be shut down.
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.
technical improvements would occur.
that an individual plant to research and develop a solution to a
cannot solve the problem it is not fair to shut down one plant.
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.
permanent fixed payments seems to grant justice between the
would spur research.
further litigation of the Pls.
litigation would be precluded
Only addresses the 4 corners and not public health.
of damage is the "servitude on land" of plaintiffs imposed by
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.
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.
pollution causes both property damages and health issues.
product has been indentified as harmful.
the continued wrong.
to eliminate the wrong.
condemnation should only be permitted when the public is
primarily served in the taking or impairment of property.
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.
cement company to continue UNLESS problem was fixed in 18
allow the company a specified period of time to development a
means to alleviate this nuisance.
should not expect acquiescence [passive assent without protest]
by the courts.
injunction to take effect 18 months, unless the nuisance is
abated by improved techniques prior to said date.