Permanent Damages

"The lower courts awarded damages for the amounts incurred up to trial but denied an injunction, leaving the plaintiffs to maintain successive actions for damages as further harm occurred. The court at Special Term also found the amount of permanent damage attributable to each plaintiff, but the parties did not stipulate to payment and acceptance of that amount as a settlement. Following the established rule literally would have closed the plant at once. The court agreed that this immediately drastic remedy should be avoided and chose to grant an injunction conditioned on the payment of permanent damages to the plaintiffs. Granting an injunction subject to abatement within a short period would provide no assurance that technical improvements would occur, and a court might later face applications for extensions. By requiring payment of permanent damages, all economic loss to the plaintiffs’ properties, present and future, caused by the defendant’s operations would be redressed. The judgment would fully redress the particular parties while leaving public health and other public agencies free to seek proper relief. The risk that cement plant owners would be required to pay permanent damages could also encourage research into improved techniques to minimize the nuisance. Where a nuisance is permanent and unabatable, a single recovery may include the whole damage, past and future, resulting from it."