Defendant, a cement plant operator, are alleged to have caused injury “to property from dirt, smoke and vibration emanating from the plant.” At trial the court awarded temporary damages but not an injunction.
“Whether the court should resolve the litigation between the parties now before it as equitable as seems possible; or whether, seeking promotion of the general public welfare, it should channel private litigation into broad public objectives.”
The former, decision affirmed. “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 court.” Control of air pollution is a government policy issue. The reason for not issuing an injunction is the great disparity that would occur in terms of harm being levied upon the Defendant relative to the Plaintiff. “This theory cannot, however, be sustained without overruling a doctrine which has been consistently reaffirmed in several leading cases in the court and which has never been disavowed.” The doctrine is that where there is substantial and intentional damage to a Plaintiff shown by way of a nuisance, an injunction shall be granted, despite a disparity in economic consequences. Following the rule would be to close the plant down.
There is no reason to believe that in 18 month, a time in which Plaintiff would be even more substantially harmed, research would alleviate the nuisance. Damages are the only way to control the remedy and do justice between the parties. The damages factor will also serve a public purpose of spurring research into alleviating the public nuisance of cement factories.
The majority authorizes in its ruling continued wrong action. The opinion is unconstitutional in that in order to serve a public purpose of maintaining the plant’s operation, a particular Plaintiff must use his land in and endure this plight. This is an unconstitutional doctrine that is adopted by the court.