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Land owners with property adjacent to a cement plant had sued, alleging that dirt, smoke and vibration issuing from it constituted nuisance. The trial court agreed and awarded damages, but rejected the request for an injunction to cut off the problem which was appealed.


  1. When should a plaintiff be granted an injunction versus damages?


Remitted to trial court to grant an injunction which shall be vacated upon payment by defendant of permanent damages to the plaintiffs.


The majority, Jasen dissenting, dismissed the injunction for two reasons:

  1. the large disparity in economic consequences of the nuisance and of the injunction (approximately $185,000 versus a $45,000,000 investment and 300 jobs), and
  2. the control of pollution was decided to fall outside of the defendant's competence.

The majority described the damage caused by the cement plant as a servitude on the land. They held that payment of permanent damages would constitute full compensation for the servitude placed on the land.


Reverses the New York equivalent of the Shelfer rule.