Supreme Court, Trial Term, New York County,

Puritan Holding Co., Inc., Plaintiff, v Dorothy Holloschitz, Also Known as Dorothy Lederer, Defendant.

September 4, 1975

Joseph M. Aronow for plaintiff.

Walter M. Schackman, J.

Plaintiff owns a small apartment building, recently renovated, on West 93rd Street in Manhat­tan, almost directly across the street from a building owned by the defendant. The latter building has been abandoned. Plaintiff claims the defendant has created a nuisance by not properly caring for her property and claims it has suffered damages as a result. Defendant did not appear in the action and an inquest was held before the court.

The uncontroverted proof at trial was that defendant’s building had deteriorated, become unsightly and been taken over by derelicts. The building’s condition has caused a deteri­oration in values on the block. A real estate expert testified that the depreciation in value of plaintiff’s property since the abandonment of defendant’s building was $30,000 to $35,000. He further stated it would be impossible for plaintiff to obtain a mortgage because of the condition of the defendant’s prop­erty. The question for the court is whether the failure of the defendant to supervise her abandoned property constitutes the maintenance of a private nuisance.

An excellent definition of nuisance appears in 4 ALR3d 908: "The nuisance doctrine operates as a restriction upon the right of an owner of property to make such use of it as he pleases. In legal phraseology the term 'nuisance’ is applied to that class of wrongs which arises from the unreasonable, unwarrantable, or unlawful use by a person of his own prop­erty, and which produces such material annoyance, inconve­nience, discomfort or hurt that the law will presume a conse­quent damage. It is so comprehensive that it has been applied to almost all wrongs which have interfered with the rights of the citizen in his person, property, the enjoyment of his property, or his comfort. It has been said that the term 'nuisance’ is incapable of an exact and exhaustive definition which will fit all cases, because the controlling facts are seldom alike, and each case stands on its own footing.”

The court has made a search of the reported cases in New York and has been unable to find any similar to the case at bar. However, it has been held that "every person who suf­fered actual damages, whether direct or consequential, from a nuisance, might maintain an action for his own particular injury.” (Lansing v Smith, 4 Wend 9.) There are numerous cases where property owners, adjacent to or in the vicinity of a nuisance, were entitled to damages. Examples are: where a tire shop emitted offensive odors and fumes (Mandell v Pas­quaretto, 76 Misc 2d 405); the discharge of large quantities of dust (Boomer v Atlantic Cement Co., 55 Misc 2d 1023, affd 30 AD2d 480, revd 26 NY2d 219, on remand 72 Misc 2d 834, affd 42 AD2d 496); an open burning operation by a city in a landfill area (Shearing v City of Rochester, 51 Misc 2d 436) and blasting operations (Dixon v New York Trap Rock Corp., 293 NY 509).

In considering whether an activity is a nuisance, the court must be mindful of the location and surroundings as well as other circumstances. An activity which occurs in a particular location and surroundings may be reasonable, while the same activity in another location and in other surroundings may be a nuisance (Town of Preble v Song Mountain, 62 Misc 2d 353).

West 93rd Street is in the West Side Urban Renewal area which has recently seen a marked upward trend in real estate values. Annually there are thousands of buildings abandoned throughout New York City. Some buildings abandoned and left in disrepair in certain deteriorating neighborhoods of the city may not constitute a nuisance. However, here a building has been abandoned in a location where property owners are trying to maintain and upgrade the housing standards. De­fendant has clearly violated section C26-80.0 of the Adminis­trative Code of the City of New York which requires that vacant buildings must be either continuously guarded or sealed. The court is of the opinion that defendant’s actions constitute a nuisance.

The court is not unmindful of the fact that given the number of abandonments, estimated by the Housing and Development Administration of the City of New York at approximately 12,000 units per year, and the further fact that the city does not have the funds to force the owners to maintain these properties, a decision in favor of plaintiff herein could result in a multiplicity of lawsuits. However, one bad building may eventually destroy an entire neighborhood. The courts have a duty to examine each situation indepen­dently.

Plaintiff has provided sufficient proof that defendant’s build­ing is, in its present condition, a nuisance. It is entitled to the difference between the market value of the building before and after the nuisance (Kinley v Atlantic Cement Co., 42 AD2d 496, supra; 42 NY Jur, Nuisance, p 531). Plaintiff’s expert has testified that the difference in value is $30,000 to $35,000. The court finds in favor of the plaintiff in the sum of $30,000.

RALPH SANS AND MITZI SANS, PLAINTIFFS-RESPOND­ENTS, v. RAMSEY GOLF AND COUNTRY CLUB, INC., DEFENDANT-APPELLANT.

Decided March 17, 1959.

Argued February 3, 1959

Mr. Walter B. Van Riper argued the cause for plaintiffs-­respondents (Messrs. Van Riper & Belmont, attorneys).

Mr. James A. Major argued the cause for defendant-­appellant (Mr. James M. Mubh, on the brief).

The opinion of the court was delivered by

Ekaucis, J.

An injunction was issued by the Chancery Division of the Superior Court against defendant Ramsey Golf and Country Club, Inc., barring the further use of the men’s and women’s third tees of its golf course. The Appel­late Division affirmed, 50 N. J. Super. 127 (1958), and this Court granted certification.

The issue presented is a novel one. The facts which created it are not seriously in dispute. The physical setting which forms its background is the product of the ingenuity of a real estate developer.

In the 1940’s the National House and Farms Ass’n, Inc., undertook a combination residential and country club develop­ment in the boroughs of Ramsey and Allendale, Bergen County. A nine-hole golf course was laid out, surrounded on all sides by home building lots. Only eight greens were provided, but the holes were so arranged that one green was to be played twice. The development tract contained three small lakes, one of which, called Mirror Lake, became the water hazard hole about which this controversy centers. A club house and tennis courts were constructed. National organized the defendant Ramsey Golf and Country Club, Inc., for the purpose of managing the recreational facilities. Under the sales plan the purchaser of a lot or a home auto­matically qualified for membership in the club. In 1945, after an undisclosed number of lots had been sold, the golf course, the clubhouse and the recreational areas were conveyed to defendant. Apparently at a later time in some manner associate memberships were authorized. They were not dependent upon ownership of a lot or home in the develop­ment.

In 1949 the plaintiffs, husband and wife, purchased a lot in the development. Naturally, they were aware of the existence of the golf course, and they became members of the club. They commenced construction of a home on the lot in 1950, after which they acquired two adjoining parcels. One side of their property adjoins the fairway of the second hole. The rear line of the three lots is near Mirror Lake but does not run to the water. It is separated from the edge of the lake by a strip of land varying in width from 11 to 40 feet, which is owned by the golf club.

In 1948 the present third women’s tee was built. Its location was designed to create a short par 4 water hole. A successful drive required a carry over the water at a point about 25 yards from the northerly edge of the lake. It seems clear, as the Appellate Division found, that the tee had been in continuous use since its installation, although the plaintiff Ralph Sans testified that he did not notice it until 1950 when his home was being built. Subsequently, apparently in 1949, a separate men’s tee was built for this hole about 30 feet farther from the northerly edge of the lake. The purpose was to lengthen the water hazard for the men. Both tees are on golf club property. According to Sans, the men’s tee is “roughly” 50 to 60 feet from the southerly corner of the rear of his house; the women’s tee is closer.

In order to reach the third tees from the second green, the golfers walk along the 11-to 40-foot-wide path (owned by defendant and described above) separating plaintiffs’ rear lawn from the lake.

Plaintiffs moved into their new home in June or July of 1951, and have lived there since that time. They have two children, who were 10 and 11 years of age when the case was heard. As the membership of the club grew, play on the golf course increased, and the players’ use of the third tees and the path to reach them became annoying and burden­some to plaintiffs. They began to complain to defendant’s officials, and thereafter and until this suit was brought, they sought to effect the relocation of the tees to the north of the northerly line of the lake. Such a change is feasible. In fact, when a stay of the restraint issued by the trial court was denied, a new temporary tee was built and has been in use pending the determination of this appeal. The objection of defendant to adopting it permanently is that an attractive short par 4 water hole is transformed into an ordinary par 3 one on a nine-hole course which already has three par 3 holes.

Plaintiffs’ complaint charged defendant and its members with trespassing on their land by using the pathway along the lake in walking to the ladies’ and men’s tees in question. This contention was abandoned when it appeared that plain­tiffs did not own the strip and that, although National had not conveyed it to defendant in the original 1945 deed, a transfer had been made by deed in 1955. Other allegations, however, in company with the issues appearing in the pre­trial order, were deemed by the trial court to present a claim that the location of the tees and the manner and incidents of their use by defendant and its members constituted a private nuisance as to plaintiffs. The trial was conducted on the latter basis.

Proof was adduced that in the golf season play begins on the third tees as early as 6 A.M. and continues throughout the day until twilight. On week-ends and holidays the activity is more intense. Sans spoke of an “endless stream of golfers” using the path just in back of his house. He estimated that about 500 families held membership in the club. The person who had been defendant’s president in 1954 and 1956 testified and was asked the number of resi­dent members. He said that he had no idea and would have to refer to the records. They were never produced. Later, after the noon recess, he returned to the stand and said, in answer to counsel for defendant: “I am not sure whether it is 299 or 305 resident families in the Estates.” When he joined the club in 1950 there were “somewhere around 120 or 125 families.” In 1957, he said, 69 associate members (i.e., those who do not live in the development) had been admitted; there were 75 such members in 1954 and 1956, and 90 in 1955. He conceded that play on the course had increased since 1950. Yet he claimed that in the summer­time on week-ends “we would run an average—not having counted them, I would have to guess—80 to 110 or 115” players. The assertion may be contrasted with the testi­mony of the 1948 chairman of the greens committee who fixed the number of resident male golfers in that year at “perhaps” 50, and the associate members at between 40 and 50, with about 100 members playing the course on week-ends. This witness sold his property in 1949 and thereafter had no connection with the club.

The unusual feature of this testimony is that in 1948, with many times fewer families and about four- or five-­ninths as many associate members, there were about the same number of players on week-ends as in 1955. The relia­bility of such proof in the face of Sans’ testimony of a steady stream of golfers all day long, is open to serious question. If the defense witness estimate of 115 players is accepted and the assumption made that each golfer plays 18 holes on this short course on Saturdays, Sundays and holidays, there were 460 trips each day over the path in back of plaintiffs’ home to the third tee and back to the fairway after driving across the lake. And every 18-hole player added to defendant’s apparently low figure means four additional passages over that path. The absence of proof as to the exact number of week-end players in the years between 1950 and 1955 cannot obscure the fact that a substantial increase in play occurred during that period. The intensified use brings into focus another factor. The original map of the Ramsey Country Club Estates, approved in 1940 by the Borough of Ramsey and filed in 1941 in the Bergen County Clerk’s Office, was marked in evidence. It shows the layout of the golf course virtually encircled by demarcated building lots. As portrayed then, Mirror Lake was not a water hole. There was no tee anywhere on the westerly or northerly side thereof, and, of course, none in the vicinity of the lots now owned by plaintiffs. The nearest tee to those lots seems to have been approximately 250 feet to the southeast of the water, i.e., across the lake and to the southwest. What is now the ladies’ third tee was built personally by some members of the club in 1948 for the use of both men and women. The then chairman of the greens committee testified:

“Q. Who else did you say worked with you in laying out that tee?

A. Well, back in those days there were a group of regulars. Do you want names?

Q. Yes.

A. I recall Bill Millett, Bob Doyles. Both were then residents of the Ramsey Golf and Country Club. Myself. Then I had occasional help from others now and then. I cannot recall. Walter Yonker would lend a hand now and then, but like every organization a few seemed to carry the burden, and we personally built this tee, carried the dirt, and we used fill that was trucked in for this second green. I personally brought several wheelbarrows in to level off the spot which is shown here at the ladies’ tee. We built that up.”

In 1948 there were no houses in the area; “nothing there but just the woods.” Thereafter, the additional tee was constructed in the location described in order to make the water carry longer for the men.

When Sans bought his first lot in 1949, the one on which his home was later constructed, he did not see the tee or tees in question. And there is no proof that anyone called them to his attention. It does appear that a certain brochure respecting the development had been given to him. A similar one was introduced in evidence. It contained what appeared to be an aerial color view of the tract, including the golf course. Although the tees were indicated, none was depicted on plaintiffs’ side of the lake. When an inquiry was made on cross-examination as to whether he did not know that he was "buying a piece of property immediately adjacent to the golf course,” he answered: “No, we did not buy a piece adjacent to the golf course. We had a choice of three lots on that end and we bought the lot away from the golf course.” And as has been indicated, he testified further that he did not see a tee in the rear of his lots until some time in 1950 when his home was being erected.

According to plaintiffs, the constant movement of the players to and from the tee in close proximity to their rear lawn and house was accompanied by a flow of conversation which became annoying and burdensome to them. It awak­ened them and their children as early as 7 in the morning and it pervaded their home all day long until twilight. Moreover, they have a consciousness that everything they say in or around the house can be heard out on the path and so they are "under a constant strain and constant tension.” They "never feel relaxed or free at home”; "[w]e never know when there is someone in our back yard.” Occasionally, a low hook or slice or heeled shot of a golfer carries upon their lawn. Then, by means of a trespass, the ball is re­trieved. Sometimes it is played from that position. Ap­parently there are no out-of-bounds stakes in the area. The combination of difficulties makes it impossible to sit outside and "enjoy supper.”

At times there are as many as 12 persons waiting to use the ladies’ and men’s tees. On a short course containing three par 3 holes, such backing up of playing groups, par­ticularly at a 260-yard water hole, might well be expected. This gathering adds to the conversation, and the voices can be heard in the house. While silence is the conventional courtesy when a golfer is addressing his ball and swinging, the ban is relaxed between shots, and presumably the nature of the comments depends in some measure upon the success or failure of the player in negotiating the hazardous water.

But an even more serious objection involves plaintiffs’ children. They have no freedom of play on their back lawn. Golfers tell them not to play there and constantly admonish them to be quiet. If they move their activities to the north side of the property, they are endangered by balls being driven on the second fairway. This exposure has constantly worried Mrs. Sans. The children have a dog. On one occasion they were cavorting in the rear of the house and the dog was barking. A golfer instructed them to keep it quiet, and when they were unable to do so he walked on plaintiffs’ property and knocked the animal unconscious with a club—even though one of the children pleaded with him not to do it. Complaint about the incident to one of defend­ant’s officials met with the response that “The dog had no right to be there.” At times the players allow their own dogs to accompany them around the course, and they have attacked plaintiffs’ dog when it was on the rear lawn.

The resident members of the club have the common right to use the lakes for fishing and boating. Plaintiffs have an aluminum boat in the lake immediately to the rear of their house. If the children take the boat out, the golfers at these tees order them off the water. They cannot fish with safety from the banks to the rear of the house for the same reason, and because of the danger of being struck by golf balls. Even in the winter, when children were ice skating there, golfers were hitting balls over their heads to the third fairway. Mrs. Sans, whose health was so affected by the strain that medical aid was required, testified: “[I]t is a beautiful lake for ice skating. Children ice skate there. I called up almost hysterical this winter [one of the defend­ant’s directors]. [The players] were driving right over the children’s heads. And they would say, ‘Move down.’ Chil­dren don’t know what area, how far they can move down. They really trust those golf balls. They haven’t the fear I have of them. I have complained several times about that.” And she said, also speaking of the children:

“I had to keep after them, and they [the golfers] kept after them. And all of the time the children had to be quiet; they could not make much noise. I thought a lot of children would come over and play with my children, but I found out that it was an unsafe place and the mothers did not want their children to come over and play because it was not safe. I felt funny about inviting friends over to play with my children. The playmates they had before [moving to this place], their mothers wouldn’t bring them up. If they did, they had to stay with them every minute. It was very, very dangerous. The golfers kept pushing them off, telling them, ‘Keep quiet. Don’t make noise.’”

Defendant recognized the danger, and at times during the winter the tee was closed off to avoid possible injury to the skaters. When this happened the hole was played from the other side of the lake—presumably in a manner similar to that followed since the injunction in this case.

On the basis of the evidence, which stands without sub­stantial dispute, plaintiffs claim that the third tees in their present location constitute a private nuisance and that their use should be enjoined. Defendant denies that the facts in their total impact warrant that conclusion. Further, it claims that plaintiffs bought their lots, built their home and moved into the area with full knowledge of the existence and use of the golf course and therefore assumed any an­noyances and inconveniences incident to the playing of the game.

The circumstances here are unique. A situation where a person buys or builds a home adjoining a wholly independent, unrelated and existing conventional type golf course is quite dissimilar. The basic theme of this development was resi­dence. The recreational facilities, including the golf course were subordinate. Their purpose and existence were to make the area a desirable one in which to dwell. Note the ecstatic exclamations of the developer’s brochures:

“The perfect home location; * * * a millionaire’s paradise for moderate income families; * * * Ramsey Country Club Estates is the culmination of a ten year search for the perfect home location * * *. Each approved purchaser will automatically re­ceive a share representing proportionate ownership in the Country Club and all its properties. The Club will own the impressive $100,000 ivy covered stone mansion for its club house. Here will be the center of social life for this unusual new community * * *. Owner-members of the Ramsey Country Club will own for their exclusive use the new 9-hole golf course * * * (the record contains no explanation of how the associate members—non-owners of property in the development—happened to be admitted to the club. Sans understood that membership was to be limited to prop­erty owners.), spacious sand bathing beaches, three picturesque lakes for canoeing, boating and fishing * * * complete facilities for the enjoyment of all winter sports * * *. Residents will enjoy swimming, canoeing, fishing, ice-skating in the comfort and safety of their own private community. * * * This magnificent club house and its grounds—all of these wonderful recreational facilities—will be shared, owned and enjoyed by a selected group of families who will live luxuriously in these unusual and incomparable surroundings for less than the cost of a small city apartment.” (Emphasis added, insertion ours.)

The plaintiffs may justly assert that these comments add equitable strength to their position in the present controversy. The brochure given to them before they became purchasers in 1949 portrayed the layout of the course; the greens were numbered and the tees were indicated. As has been pointed out, no tee appeared on their side of Mirror Lake. No suggestion is made that any representative of the developer or of defendant apprised them of any such tee. And it is not shown on the detailed map on file in the county clerk’s office. In the factual context, the element of reliance by the Sans cannot be overlooked.

Thus the heart of the project was and is the home. The pastime facilities were intended to be no more than an aid to the enjoyment of the home, as the veins facilitate the functions of the heart. An avoidable and readily curable ailment in one vein should not be permitted to impair the central organ. Especially is this true when the remedy calls for a comparatively simple adjustment which will not ma­terially impair the physical structure in its entirety.

The essence of a private nuisance is an unreasonable interference with the use and enjoyment of land. The ele­ments are myriad. The law has never undertaken to define all of the possible sources of annoyance and discomfort which would justify such a finding. Pollock, Torts (1887), 260, 261. Litigation of this type usually deals with the conflicting interests of property owners and the question of the reasonableness of the defendant’s mode of use of his land. The process of adjudication requires recognition of the reciprocal right of each owner to reasonable use, and a balancing of the conflicting interests. The utility of the defendant’s conduct must be weighed against the quantum of harm to the plaintiff. The question is not simply whether a person is annoyed or disturbed, but whether the annoyance or disturbance arises from an unreasonable use of the neigh­bor’s land or operation of his business. Prosser, Torts (2d ed. 1955), 410. As the Court of Appeals of Ohio put it in Antonik v. Chamberlain, 81 Ohio App. 465, 78 N. E. 2d 752, 759 (1947):

“The law of nuisance plys between two antithetical extremes: The principle that every person is entitled to use his property for any purpose that he sees fit, and the opposing principle that everyone is bound to use his property in such a manner as not to injure the property or rights of his neighbor.”

Defendant’s members have the right to the ordinary and expected use of the golf course. Plaintiffs have the correla­tive right to the enjoyment of their property. The element of reciprocity must be emphasized because the parties’ in­terests stem from a common source and are more mutually interdependent than in the usual case. The Appellate Divi­sion properly suggests the pertinent inquiry to be “whether defendant’s activities materially and unreasonably interfere with plaintiffs’ comforts or existence, ‘not according to ex­ceptionally refined, uncommon or luxurious habits of living, but according to the simple tastes and unaffected notions generally prevailing among plain people’.” 50 N. J. Super. 127, at page 134, citing Stevens v. Rockport Granite Co., 216 Mass. 486, 104 N. E. 371 (Sup. Jud. Ct. 1914).

In the unusual circumstances of this case, the activities of defendant are manifestly incompatible with the ordinary and expected comfortable life in plaintiffs’ home and the normal use of their property. The evaluation of the con­flicting equities must be made in the factual framework presented. And any relief granted must result from a reasonable accommodation of those equities to each other in the light of the evaluation. In our judgment, the facts considered in their totality demonstrate that plaintiffs’ in­terests are paramount and demand reasonable protection. See Benton v. Kernan, 130 N. J. Eq. 193 (E. & A. 1941). The trial court and the Appellate Division felt that a proper balance of equitable convenience could be achieved by re­quiring defendant to relocate the ladies’ and men’s third tees. Such relief, in our opinion, does not represent a burden disproportionate to the travail which would be suf­fered by plaintiffs and their family through the perpetua­tion of the present method of play on the course.

Judgment affirmed.

For affirmance—Chief Justice Weintraub, and Justices Heher, Burling, Jacobs, Francis and Proctor—6.

For reversal—None.

Oscar H. Boomer et al., Appellants, v. Atlantic Cement Company, Inc., Respondent. (And Five Other Actions.) Charles J. Meilak et al., Appellants, v. Atlantic Cement Company, Inc., Respondent.

decided March 4, 1970.

Argued October 31, 1969;

E. David Duncan for appellants in first above-entitled actions.

Daniel H. Prior, Jr. and John J. Biscone for appellants in second above-entitled action.

Thomas F. Tracy and Frank J. Warner, Jr. for respondent.

I. The trial court, as well as the Appellate Division, erred as a matter of law by depriving plaintiffs of their property rights when the courts failed to grant an injunction against the nuisances created by The Atlantic Cement Company, Inc. (Campbell v. Seaman, 63 N. Y. 568; Whalen v. Union Bag & Paper Co., 208 N. Y. 1; Strobel v. Kerr Salt Co., 164 N. Y. 303; Stowers v. Gilbert, 156 N. Y. 600; Pappenheim v. Metropolitan El. Ry. Co., 128 N. Y. 436; Hulbert v. California Portland Cement Co., 161 Cal. 239; McCann v. Chasm Power Co., 211 N. Y. 301; Forstmann v. Joray Holding Co., 244 N. Y. 22; How­land v. Union Bag & Paper Corp., 156 Misc. 507; Wormser v. Brown, 149 N. Y. 163.) II. The trial court and Appellate Divi­sion in our instant cases have devised a new “economic utility doctrine”, which if left unchallenged will leave in jeopardy the rights of small property owners throughout the State of New York. III. The trial court and the Appellate Division erred in their decision by leaving plaintiffs with an inadequate remedy at law, which results in a multiplicity of suits. (Campbell v. Seaman, 63 N. Y. 568; Henderson v. New York Cent. R. R. Co., 78 N. Y. 423; Madison Ave. Baptist Church v. Baptist Church in Oliver St., 73 N. Y. 82.) IV. The lower courts erroneously based their limitation on the scope of damages that could be awarded. (Uline v. New York Cent. & Hudson Riv. R. R. Co., 101 N. Y. 98; Francis v. Schoellkopf, 53 N. Y. 152; Henderson v. New York Cent. R. R. Co., 78 N. Y. 423.) V. The temporary damages granted by the trial court to plaintiffs were inadequate. (Reisert v. City of New York, 174 N. Y. 196; Bates v. Holbrook, 89 App. Div. 548; Bohan v. Port Jervis Gaslight Co., 122 N. Y. 18.) VI. The reasonable market value of the real property of plain­tiffs and of the business known as the Coach House Restaurant as well as the permanent damage found by the trial court were grossly inadequate as a matter of law.

I. It was error of law for the trial court and the Appellate Division to deny a permanent injunc­tion to plaintiffs. (Forstmann v. Joray Holding Co., 244 N. Y. 22; Howland v. Union Bag & Paper Corp., 156 Misc. 507; McCann v. Chasm Power Co., 211 N. Y. 301; Squaw Is. Frgt. Term. Co. v. City of Buffalo, 246 App. Div. 472; Whalen v. Union Bag & Paper Co., 208 N. Y. 1; Spano v. Perini Corp., 25 N Y 2d 11; Hay v. Cohoes Co., 2 N Y 159.) II. The trial court and the Appellate Division, by its affirmance, erroneously held that plaintiffs’ damages were limited to loss of rental value. (Uline v. New York Cent. & Hudson Riv. R. R. Co., 101 N. Y. 98; Francis v. Schoellkopf, 53 N. Y. 152; Hoffman v. Edison Elec. Illuminating Co., 87 App. Div. 371; Henderson v. New York Cent. R. R. Co., 78 N. Y. 423; Kilbourne v. Board of Supervisors of Sullivan County, 137 N. Y. 170; Campbell v. Seaman, 63 N. Y. 568; Baumann v. City of New York, 180 App. Div. 498.)

I. The appeals should be dismissed since they do not raise any questions which are reviewable by this court. (Matter of Seagram & Sons v. Tax Comm. of City of N. Y., 14 N Y 2d 314; Bethlehem Steel Co. v. Turner Constr. Co., 2 N Y 2d 456; St. Agnes Cemetery v. State of New York, 3 N Y 2d 37; Zipprich v. Smith Trucking Co., 2 N Y 2d 177; Serano v. New York Cent. & Hudson Riv. R. R. Co., 188 N. Y. 156; Dimon v. New York Cent. & Hudson Riv. R. R. Co., 173 N. Y. 356; Flagg v. Nichols, 307 N. Y. 96; Caponigri v. Altieri, 165 N. Y. 255.) II. The trial court properly found that a permanent injunction should not be granted. (Bentley v. Empire Portland Cement Co., 48 Misc. 457; Canfield v. Quayle, 170 Misc. 621; Andrews v. Perry, 127 Misc. 320; Strobel v. Kerr Salt Co., 164 N. Y. 303; Whalen v. Union Bag & Paper Co., 208 N. Y. 1.) III. The rule of damages applied by the trial court and the Appellate Division was correct. (Uline v. New York Cent. & Hudson Riv. R. R. Co., 101 N. Y. 98; Henderson v. New York Cent. R. R. Co., 78 N. Y. 423; Williams v. New York Cent. R. R. Co., 16 N. Y. 97; Pappenheim v. Metro­politan El. Ry. Co., 128 N. Y. 436; Lynch v. Metropolitan El. Ry. Co., 129 N. Y. 274; Westphal v. City of New York, 177 N. Y. 140; Ferguson v. Village of Hamburg, 272 N. Y. 234; Jamaica Sav. Bank v. M. S. Investing Co., 274 N. Y. 215.) IV. The questions of damages, including their adequacy, was properly determined in the court below. (Fitzgerald v. New York Cent. R. R. Co., 215 App. Div. 1; Jamaica Sav. Bank v. M. S. Investing Co., 274 N. Y. 215; Uline v. New York Cent. & Hudson Riv. R. R. Co., 101 N. Y. 98; Francis v. Schoellkopf, 53 N. Y. 152; Hoffman v. Edison Elec. Illuminating Co., 87 App. Div. 371; Tubiola v. Baker, 225 App. Div. 420; Matter of Sebring, 238 App. Div. 281.)

Bergan, J.

Defendant operates a large cement plant near Albany. These are actions for injunction and damages by neighboring land owners alleging injury to property from dirt, smoke and vibration emanating from the plant. A nuisance has been found after trial, temporary damages have been allowed; but an injunction has been denied.

The public concern with air pollution arising from many sources in industry and in transportation is currently accorded ever wider recognition accompanied by a growing sense of responsibility in State and Federal Governments to control it. Cement plants are obvious sources of air pollution in the neighborhoods where they operate.

But there is now before the court private litigation in which individual property owners have sought specific relief from a single plant operation. The threshold question raised by the division of view on this appeal is whether the court should resolve the litigation between the parties now before it as equitably as seems possible; or whether, seeking promotion of the general public welfare, it should channel private litigation into broad public objectives.

A court performs its essential function when it decides the rights of parties before it. Its decision of private controversies may sometimes greatly affect public issues. Large questions of law are often resolved by the manner in which private liti­gation is decided. But this is normally an incident to the court’s main function to settle controversy. 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.

Effective control of air pollution is a problem presently far from solution even with the full public and financial powers of government. In large measure adequate technical procedures are yet to be developed and some that appear possible may be economically impracticable.

It seems apparent that the amelioration of air pollution will depend on technical research in great depth; on a carefully balanced consideration of the economic impact of close regula­tion; and of the actual effect on public health. It is likely to require massive public expenditure and to demand more than any local community can accomplish and to depend on regional and interstate controls.

A court should not try to do this on its own as a by-product of private litigation and it seems manifest that the judicial establishment is neither equipped in the limited nature of any judgment it can pronounce nor prepared to lay down and imple­ment an effective policy for the elimination of air pollution. This is an area beyond the circumference of one private lawsuit. It is a direct responsibility for government and should not thus be undertaken as an incident to solving a dispute between property owners and a single cement plant—one of many—in the Hudson River valley.

The cement making operations of defendant have been found by the court at Special Term to have damaged the nearby proper­ties of plaintiffs in these two actions. That court, as it has been noted, accordingly found defendant maintained a nuisance and this has been affirmed at the Appellate Division. 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.

The ground for the denial of injunction, notwithstanding the finding both that there is a nuisance and that plaintiffs have been damaged substantially, is the large disparity in economic consequences of the nuisance and of the injunction. This theory cannot, however, be sustained without overruling a doctrine which has been consistently reaffirmed in several leading cases in this court and which has never been disavowed here, namely that where a nuisance has been found and where there has been any substantial damage shown by the party complaining an injunction will be granted.

The rule in New York has been that such a nuisance will be enjoined although marked disparity be shown in economic consequence between the effect of the injunction and the effect of the nuisance.

The problem of disparity in economic consequence was sharply in focus in Whalen v. Union Bag & Paper Co. (208 N. Y. 1). A pulp mill entailing an investment of more than a million dollars polluted a stream in which plaintiff, who owned a farm, was “a lower riparian owner". The economic loss to plaintiff from this pollution was small. This court, reversing the Appellate Division, reinstated the injunction granted by the Special Term against the argument of the mill owner that in view of "the slight advantage to plaintiff and the great loss that will be inflicted on defendant" an injunction should not be granted (p. 2). “Such a balancing of injuries can­not be justified by the circumstances of this case”, Judge Werner noted (p. 4). He continued: “Although the damage to the plaintiff may be slight as compared with the defendant’s expense of abating the condition, that is not a good reason for refusing an injunction” (p. 5).

Thus the unconditional injunction granted at Special Term was reinstated. The rule laid down in that case, then, is that whenever the damage resulting from a nuisance is found not “unsubstantial”, viz., $100 a year, injunction would follow. This states a rule that had been followed in this court with marked consistency (McCarty v. Natural Carbonic Gas Co., 189 N. Y. 40; Strobel v. Kerr Salt Co., 164 N. Y. 303; Campbell v. Seaman, 63 N. Y. 568).

There are cases where injunction has been denied. McCann v. Chasm Power Co. (211 N. Y. 301) is one of them. There, how­ever, the damage shown by plaintiffs was not only unsubstantial, it was non-existent. 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. Similar is the basis for denial of injunction in Forstmann v. Joray Holding Co. (244 N. Y. 22) where no benefit to plaintiffs could be seen from the injunction sought (p. 32). Thus if, within Whalen v. Union Bag & Paper Co. (supra) which authoritatively states 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.

Although the court at Special Term and the Appellate Division held that injunction should be denied, it was found that plain­tiffs had been damaged in various specific amounts up to the time of the trial and damages to the respective plaintiffs were awarded for those amounts. The effect of this was, injunction having been denied, plaintiffs could maintain successive actions at law for damages thereafter as further damage was incurred.

The court at Special Term also found the amount of permanent damage attributable to each plaintiff, for the guidance of the parties in the event both sides stipulated to the payment and acceptance of such permanent damage as a settlement of all the controversies among the parties. The total of permanent dam­ages to all plaintiffs thus found was $185,000. This basis of adjustment has not resulted in any stipulation by the parties.

This result at Special Term and at the Appellate Division is a departure from a rule that has become settled; but to follow the rule literally in these cases would be to close down the plant at once. This court is fully agreed to avoid that immediately drastic remedy; the difference in view is how best to avoid it.*

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; 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. For reasons which will be developed the court chooses the latter alternative.

If the injunction were to be granted unless within a short period—e.g., 18 months—the nuisance be abated by improved methods, there would be no assurance that any significant technical improvement would occur.

The parties could settle this private litigation at any time if defendant paid enough money and the imminent threat of closing the plant would build up the pressure on defendant. If there were no improved techniques found, there would inevita­bly be applications to the court at Special Term for extensions of time to perform on showing of good faith efforts to find such techniques.

Moreover, techniques to eliminate dust and other annoying by-products of cement making are unlikely to be developed by any research the defendant can undertake within any short period, but will depend on the total resources of the cement industry Nationwide and throughout the world. The problem is universal wherever cement is made.

For obvious reasons the rate of the research is beyond control of defendant. If at the end of 18 months the whole industry has not found a technical solution a court would be hard put to close down this one cement plant if due regard be given to equitable principles.

On the other hand, to grant the injunction unless defendant pays plaintiffs such permanent damages as may be fixed by the court seems to do justice between the contending parties. All of the attributions of economic loss to the properties on which plaintiffs’ complaints are based will have been redressed.

The nuisance complained of by these plaintiffs may have other public or private consequences, but these particular parties are the only ones who have sought remedies and the judgment pro­posed will fully redress them. The limitation of relief granted is a limitation only within the four corners of these actions and does not foreclose public health or other public agencies from seeking proper relief in a proper court.

It seems reasonable to think that the risk of being required to pay permanent damages to injured property owners by cement plant owners would itself be a reasonable effective spur to research for improved techniques to minimize nuisance.

The power of the court to condition on equitable grounds the continuance of an injunction on the payment of permanent damages seems undoubted. (See, e.g., the alternatives con­sidered in McCarty v. Natural Carbonic Gas Co., supra, as well as Strobel v. Kerr Salt Co., supra.)

The damage base here suggested is consistent with the gen­eral rule in those nuisance cases where damages are allowed. "Where a nuisance is of such a permanent and unabatable character that a single recovery can be had, including the whole damage past and future resulting therefrom, there can be but one recovery” (66 C. J. S., Nuisances, § 140, p. 947). It has been said that permanent damages are allowed where the loss recoverable would obviously be small as compared with the cost of removal of the nuisance (Kentucky-Ohio Gas Co. v. Bowling, 264 Ky. 470, 477).

The present cases and the remedy here proposed are in a number of other respects rather similar to Northern Indiana Public Serv. Co. v. Vesey (210 Ind. 338) decided by the Supreme Court of Indiana. The gases, odors, ammonia and smoke from the Northern Indiana company’s gas plant damaged the nearby Vesey greenhouse operation. An injunction and damages were sought, but an injunction was denied and the relief granted was limited to permanent damages “present, past, and future” (p. 371).

Denial of injunction was grounded on a public interest in the operation of the gas plant and on the court’s conclusion “that less injury would be occasioned by requiring the appellant [Public Service] to pay the appellee [Vesey] all damages suf­fered by it * * * than by enjoining the operation of the gas plant; and that the maintenance and operation of the gas plant should not be enjoined” (p. 349).

The Indiana Supreme Court opinion continued: "When the trial court refused injunctive relief to the appellee upon the ground of public interest in the continuance of the gas plant, it properly retained jurisdiction of the case and awarded full compensation to the appellee. This is upon the general equitable principle that equity will give full relief in one action and prevent a multiplicity of suits” (pp. 353-354).

It was held that in this type of continuing and recurrent nuisance permanent damages were appropriate. See, also, City of Amarillo v. Ware (120 Tex. 456) 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.

There is some parallel to the conditioning of an injunction on the payment of permanent damages in the noted "elevated rail­way cases” (Pappenheim v. Metropolitan El. Ry. Co., 128 N. Y. 436, and others which followed). Decisions in these 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.

Judge Finch, reviewing these cases in Ferguson v. Village of Hamburg (272 N. Y. 234, 239-240), said: "The courts decided that the plaintiffs had a valuable right which was being impaired, but did not grant an absolute injunction or require the railway companies to resort to separate condemnation pro­ceedings. Instead they held that a court of equity could ascer­tain the damages and grant an injunction which was not to be effective unless the defendant failed to pay the amount fixed as damages for the past and permanent injury inflicted.” (See, also, Lynch v. Metropolitan El. Ry. Co., 129 N. Y. 274; Van Allen v. New York El. R. R. Co., 144 N. Y. 174; Cox v. City of New York, 265 N. Y. 411, and similarly, Westphal v. City of New York, 177 N. Y. 140.)

Thus it seems fair to both sides to grant permanent damages to plaintiffs which will terminate this private litigation. The theory of damage is the "servitude on land" of plaintiffs imposed by defendant’s nuisance. (See United States v. Causby, 328 U. S. 256, 261, 262, 267, where the term “servitude” addressed to the land was used by Justice Douglas relating to the effect of airplane noise on property near an airport.)

The judgment, by allowance of permanent damages imposing a servitude on land, which is the basis of the actions, would preclude future recovery by plaintiffs or their grantees (see Northern Indiana Public Serv. Co. v. Vesey, supra, p. 351).

This should be placed beyond debate by a provision of the judgment that the payment by defendant and the acceptance by plaintiffs of permanent damages found by the court shall be in compensation for a servitude on the land.

Although the Trial Term has found permanent damages as a possible basis of settlement of the litigation, on remission the court should be entirely free to re-examine this subject. It may again find the permanent damage already found; or make new findings.

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.

*

Respondent’s investment in the plant is in excess of $45,000,000. There are over 300 people employed there.

Jasen, J. (dissenting).

I agree with the majority that a reversal is required here, but I do not subscribe to the newly enunciated doctrine of assessment of permanent damages, in lieu of an injunction, where substantial property rights have been impaired by the creation of a nuisance.

It has long been the rule in this State, as the majority acknowledges, that a nuisance which results in substantial con­tinuing damage to neighbors must be enjoined. (Whalen v. Union Bag & Paper Co., 208 N. Y. 1; Campbell v. Seaman, 63 N. Y. 568; see, also, Kennedy v. Moog Servocontrols, 21 N Y 2d 966.) To now change the rule to permit the cement company to continue polluting the air indefinitely upon the payment of permanent damages is, in my opinion, compounding the magnitude of a very serious problem in our State and Nation today.

In recognition of this problem, the Legislature of this State has enacted the Air Pollution Control Act (Public Health Law, §§ 1264-1299-m) declaring that it is the State policy to require the use of all available and reasonable methods to prevent and control air pollution (Public Health Law, § 12651).

The harmful nature and widespread occurrence of air pollu­tion have been extensively documented. Congressional hear­ings have revealed that air pollution causes substantial property damage, as well as being a contributing factor to a rising incidence of lung cancer, emphysema, bronchitis and asthma.2

The specific problem faced here is known as particulate con­tamination because of the fine dust particles emanating from defendant’s cement plant. The particular type of nuisance is not new, having appeared in many cases for at least the past 60 years. (See Hulbert v. California Portland Cement Co., 161 Cal. 239 [1911].) It is interesting to note that cement produc­tion has recently been identified as a significant source of particulate contamination in the Hudson Valley.3 This type of pollution, wherein very small particles escape and stay in the atmosphere, has been denominated as the type of air pollution which produces the greatest hazard to human health.4 5We have thus a nuisance which not only is damaging to the plaintiffs, but also is decidedly harmful to the general public.

I see grave dangers in overruling our long-established rule of granting an injunction where a nuisance results in substantial continuing damage. In permitting the injunction to become inoperative upon the payment of permanent damages, the majority is, in effect, licensing a continuing wrong. It is the same as saying to the cement company, you may continue to do harm to your neighbors so long as you pay a fee for it. Further­more, once such permanent damages are assessed and paid, the incentive to alleviate the wrong would be eliminated, thereby continuing air pollution of an area without abatement.

It is true that some courts have sanctioned the remedy here proposed by the majority in a number of cases,6 but none of the authorities relied upon by the majority are analogous to the situation before us. In those cases, the courts, in denying an injunction and awarding money damages, grounded their deci­sion on a showing that the use to which the property was intended to be put was primarily for the public benefit. Here, on the other hand, it is clearly established that the cement company is creating a continuing air pollution nuisance primarily for its own private interest with no public benefit.

This kind of inverse condemnation (Ferguson v. Village of Hamburg, 272 N. Y. 234 may not be invoked by a private person or corporation for private gain or advantage. Inverse con­demnation should only be permitted when the public is primarily served in the taking or impairment of property. (Matter of New York City Housing Auth. v. Muller, 270 N. Y. 333, 343; Pocantico Water Works Co. v. Bird, 130 N. Y. 249, 258.) The promotion of the interests of the polluting cement company has, in my opinion, no public use or benefit.

Nor is it 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. (See Fifth Ave. Coach Lines v. City of New York, 11 N Y 2d 342, 347; Walker v. City of Hutchinson, 352 U. S. 112.) This is made clear by the State Constitution (art. I, § 7, subd. [a]) which provides that “[p]rivate property shall not be taken for public use without just compensation” (emphasis added). It is, of course, significant that the section makes no mention of taking for a private use.

In sum, then, by constitutional mandate as well as by judicial pronouncement, the permanent impairment of private property for private purposes is not authorized in the absence of clearly demonstrated public benefit and use.

I would enjoin the defendant cement company from continuing the discharge of dust particles upon its neighbors’ properties unless, within 18 months, the cement company abated this nuisance.7

It is not my intention to cause the removal of the cement plant from the Albany area, but to recognize the urgency of the problem stemming from this stationary source of air pollution, and to allow the company a specified period of time to develop a means to alleviate this nuisance.

I am aware that the trial court found that the most modern dust control devices available have been installed in defendant’s plant, but, I submit, this does not mean that better and more effective dust control devices could not be developed within the time allowed to abate the pollution.

Moreover, I believe it is incumbent upon the defendant to develop such devices, since the cement company, at the time the plant commenced production (1962), was well aware of the plaintiffs’ presence in the area, as well as the probable con­sequences of its contemplated operation. Yet, it still chose to build and operate the plant at this site.

In a day when there is a growing concern for clean air, highly developed industry should not expect acquiescence by the courts, but should, instead, plan its operations to eliminate contamination of our air and damage to its neighbors.

Accordingly, the orders of the Appellate Division, insofar as they denied the injunction, should be reversed, and the actions remitted to Supreme Court, Albany County to grant an injunc­tion to take effect 18 months hence, unless the nuisance is abated by improved techniques prior to said date.

Chief Judge Fuld and Judges Burke and Scileppi concur with Judge Bergan; Judge Jasen dissents in part and votes to reverse in a separate opinion; Judges Breitel and Gibson taking no part.

In each action: Order reversed, without costs, and the case remitted to Supreme Court, Albany County, for further proceedings in accordance with the opinion herein.

1

See, also, Air Quality Act of 1967, 81 U. S. Stat. 485 (1967).

2

See U. S. Cong., Senate Comm, on Public Works, Special Subcomm. on Air and Water Pollution, Air Pollution 1966, 89th Cong., 2d Sess., 1966, at pp. 22-24; U. S. Cong., Senate Comm, on Public Works, Special Subcomm. on Air and Water Pollution, Air Pollution 1968, 90th Cong., 2d Sess., 1968, at pp. 850, 1084.

3

New York State Bureau of Air Pollution Control Services, Air Pollution Capital District, 1968, at p. 8.

4

J. Ludwig, Air Pollution Control Technology: Research and Development on New and Improved Systems, 33 Law & Contemp. Prob., 217, 219 (1968).

5

There are seven plaintiffs here who have been substantially damaged by the maintenance of this nuisance. The trial court found their total permanent damages to equal $185,000.

6

See United States v. Causby (328 U. S. 256); Kentucky-Ohio Gas Co. v. Bowling (284 Ky. 470, 477); Northern Indiana Public Sen. Co. v. Vesey (210 Ind. 338); City of Amarillo v. Ware (120 Tex. 456); Pappenheim v. Metro­politan El. Ry. Co. (128 N. Y. 436); Ferguson v. Village of Hamburg (272 N. Y. 234).

7

The issuance of an injunction to become effective in the future is not an entirely new concept. For instance, in Schwarzenbach v. Oneonta Light & Power Co. (207 N. Y. 671), an injunction against the maintenance of a dam spilling water on plaintiff’s property was issued to become effective one year hence.

Page 700

        [108 Ariz. 179]

Snell & Wilmer, by Mark Wilmer, and John Lundin, Phoenix, for appellant and cross-appellee.

        L. Dennis Marlowe, Tempe, for appellee and cross-appellant.

        CAMERON, Vice Chief Justice.

        From a judgment permanently enjoining the defendant, Spur Industries, Inc., from operating a cattle feedlot near the plaintiff Del E. Webb Development Company's Sun City, Spur appeals. Webb cross-appeals. Although numerous issues are raised, we feel that it is necessary to answer only two questions. They are:

1. Where the operation of a business, such as a cattle feedlot is lawful in the first instance, but becomes a nuisance by reason of a nearby residential area, may the feedlot operation be enjoined in an action brought by the developer of the residential area?

2. Assuming that the nuisance may be enjoined, may the developer of a completely new town or urban area in a previously agricultural area be required to indemnify the operator of the feedlot who must move or cease operation because of the presence of the residential area created by the developer?

The facts necessary for a determination of this matter on appeal are as follows. The area in question is located in Maricopa County, Arizona, some 14 to 15 miles west of the urban area of Phoenix, on the Phoenix-Wickenburg Highway, also known as Grand Avenue. About two miles south of Grand Avenue is Olive Avenue which runs east and west. 111th Avenue runs north and south as does the Agua Fria River immediately to the west. See Exhibits A and B below.

Farming started in this area about 1911. In 1929, with the completion of the Carl Pleasant Dam, gravity flow water became available to the property located to the west of the Agua Fria River, though land to the east remained dependent upon well water for irrigation. By 1950, the only urban areas in the vicinity were the agriculturally related communities of Peoria, El Mirage, and Surprise located along Grand Avenue. Along 111th Avenue, approximately one mile south of Grand Avenue and 1 1/2 miles north of Olive Avenue, the community of Youngtown was commenced [108 Ariz. 182] in 1954. Youngtown is a retirement community appealing primarily to senior citizens.

        In 1956, Spur's predecessors in interest, H. Marion Welborn and the Northside Hay Mill and Trading Company, developed feedlots, about 1/2 mile south of Olive Avenue, in an area between the confluence of the usually dry Agua Fria and New Rivers. The area is well suited for cattle feeding and in 1959, there were 25 cattle feeding pens or dairy operations within a 7 mile radius of the location developed by Spur's predecessors. In April and May of 1959, the Northside Hay Mill was feeding between 6,000 and 7,000 head of cattle and Welborn approximately 1,500 head on a combined area of 35 acres.

        In May of 1959, Del Webb began to plan the development of an urban area to be known as Sun City. For this purpose, the Marinette and the Santa Fe Ranches, some 20,000 acres of farmland, were purchased for $15,000,000 or $750.00 per acre. This price was considerably less than the price of land located near the urban area of Phoenix, and along with the success of Youngtown was a factor influencing the decision to purchase the property in question.

        By September 1959, Del Webb had started construction of a golf course south of Grand Avenue and Spur's predecessors had started to level ground for more feedlot area. In 1960, Spur purchased the property in question and began a rebuilding and expansion program extending both to the north and south of the original facilities. By 1962, Spur's expansion program was completed and had expanded from approximately 35 acres to 114 acres. See Exhibit A above.

        Accompanied by an extensive advertising campaign, homes were first offered by Del Webb in January 1960 and the first unit to be completed was south of Grand Avenue and approximately 2 1/2 miles north of Spur. By 2 May 1960, there were 450 to 500 houses completed or under construction. At this time, Del Webb did not consider odors from the Spur feed pens a problem and Del Webb continued to develop in a southerly direction, until sales resistance became so great that the parcels were difficult if not impossible to sell. Thomas E. Breen, Vice President and General Manager of the housing division of Del Webb, testified at deposition as follows:

"Q Did you ever have any discussions with Tony Cole at or about the time the sales office was opened south of Peoria concerning the problem in sales as the development came closer towards the feed lots?

"A Not at the time that that facility was opened. That was subsequent to that.

"Q All right, what is it that you recall about conversations with Cole on that subject?

"A Well, when the feed lot problem became a bigger problem, which, really, to the best of my recollection, commenced to become a serious problem in 1963, and there was some talk about not developing that area because of sales resistance, and to my recollection we shifted—we had planned at that time to the eastern portion of the property, and it was a consideration.

"Q Was any specific suggestion made by Mr. Cole as to the line of demarcation that should be drawn or anything of that type exactly where the development should cease?

"A I don't recall anything specific as far as the definite line would be, other than, you know, that it would be advisable to stay out of the southwestern portion there because of sales resistance.

"Q And to the best of your recollection, this was in about 1963?

"A That would be my recollection, yes.

"Q As you recall it, what was the reason that the suggestion was not [108 Ariz. 183] adopted to stop developing towards the southwest of the development?

"A Well, as far as I know, that decision was made subsequent to that time.

"Q Right. But I mean at that time?

"A Well, at that time what I am really referring to is more of a long-range planning than immediate planning, and I think it was the case of just trying to figure out how far you could go with it before you really ran into a lot of sales resistance and found a necessity to shift the direction.

"Q So that plan was to go as far as you could until the resistance got to the point where you couldn't go any further?

"A I would say that is reasonable, yes."

        By December 1967, Del Webb's property had extended south to Olive Avenue and Spur was within 500 feet of Olive Avenue to the north. See Exhibit B above. Del Webb filed its original complaint alleging that in excess of 1,300 lots in the southwest portion were unfit for development for sale as residential lots because of the operation of the Spur feedlot.

        Del Webb's suit complained that the Spur feeding operation was a public nuisance because of the flies and the odor which were drifting or being blown by the prevailing south to north wind over the southern portion of Sun City. At the time of the suit, Spur was feeding between 20,000 and 30,000 head of cattle, and the facts amply support the finding of the trial court that the feed pens had become a nuisance to the people who resided in the southern part of Del Webb's development. The testimony indicated that cattle in a commercial feedlot will produce 35 to 40 pounds of wet manure per day, per head, or over a million pounds of wet manure per day for 30,000 head of cattle, and that despite the admittedly good feedlot management and good housekeeping practices by Spur, the resulting odor and flies produced an annoying if not unhealthy situation as far as the senior citizens of southern Sun City were concerned. There is no doubt that some of the citizens of Sun City were unable to enjoy the outdoor living which Del Webb had advertised and that Del Webb was faced with sales resistance from prospective purchasers as well as strong and persistent complaints from the people who had purchased homes in that area.

        Trial was commenced before the court with an advisory jury. The advisory jury was later discharged and the trial was continued before the court alone. Findings of fact and conclusions of law were requested and given. The case was vigorously contested, including special actions in this court on some of the matters. In one of the special actions before this court, Spur agreed to, and did, shut down its operation without prejudice to a determination of the matter on appeal. On appeal the many questions raised were extensively briefed.

        It is noted, however, that neither the citizens of Sun City nor Youngtown are represented in this lawsuit and the suit is solely between Del E. Webb Development Company and Spur Industries, Inc.

MAY SPUR BE ENJOINED?

        The difference between a private nuisance and a public nuisance is generally one of degree. A private nuisance is one affecting a single individual or a definite small number of persons in the enjoyment of private rights not common to the public, while a public nuisance is one affecting the rights enjoyed by citizens as a part of the public. To constitute a public nuisance, the nuisance must affect a considerable number of people or an entire community or neighborhood. City of Phoenix v. Johnson, 51 Ariz. 115, 75 P.2d 30 (1938).

        Where the injury is slight, the remedy for minor inconveniences lies in an action for damages rather than in one for an injunction. Kubby v. Hammond, 68 Ariz. 17, 198 P.2d 134 (1948). Moreover, [108 Ariz. 184] some courts have held, in the "balancing of conveniences" cases, that damages may be the sole remedy. See Boomer v. Atlantic Cement Co., 26 N.Y.2d 219, 309 N.Y.S.2d 312, 257 N.E.2d 870, 40 A.L.R.3d 590 (1970), and annotation comments, 40 A.L.R.3d 601.

        Thus, it would appear from the admittedly incomplete record as developed in the trial court, that, at most, residents of Youngtown would be entitled to damages rather than injunctive relief.

        We have no difficulty, however, in agreeing with the conclusion of the trial court that Spur's operation was an enjoinable public nuisance as far as the people in the southern portion of Del Webb's Sun City were concerned.

        § 36-601, subsec. A reads as follows:

"§ 36-601. Public nuisances dangerous to public health

"A. The following conditions are specifically declared public nuisances dangerous to the public health:

"1. Any condition or place in populous areas which constitutes a breeding place for flies, rodents, mosquitoes and other insects which are capable of carrying and transmitting disease-causing organisms to any person or persons."

        By this statute, before an otherwise lawful (and necessary) business may be declared a public nuisance, there must be a "populous" area in which people are injured:

"* * * [I]t hardly admits a doubt that, in determining the question as to whether a lawful occupation is so conducted as to constitute a nuisance as a matter of fact, the locality and surroundings are of the first importance. (citations omitted) A business which is not per se a public nuisance may become such by being carried on at a place where the health, comfort, or convenience of a populous neighborhood is affected. * * * What might amount to a serious nuisance in one locality by reason of the density of the population, or character of the neighborhood affected, may in another place and under different surroundings be deemed proper and unobjectionable. * * *." MacDonald v. Perry, 32 Ariz. 39, 49-50, 255 P. 494, 497 (1927).

        It is clear that as to the citizens of Sun City, the operation of Spur's feedlot was both a public and a private nuisance. They could have successfully maintained an action to abate the nuisance. Del Webb, having shown a special injury in the loss of sales, had a standing to bring suit to enjoin the nuisance. Engle v. Clark, 53 Ariz. 472, 90 P.2d 994 (1939); City of Phoenix v. Johnson, supra. The judgment of the trial court permanently enjoining the operation of the feedlot is affirmed.

MUST DEL WEBB INDEMNIFY SPUR?

        A suit to enjoin a nuisance sounds in equity and the courts have long recognized a special responsibility to the public when acting as a court of equity:

§ 104. Where public interest is involved.

"Courts of equity may, and frequently do, go much further both to give and withhold relief in furtherance of the public interest than they are accustomed to go when only private interests are involved. Accordingly, the granting or withholding of relief may properly be dependent upon considerations of public interest. * * *." 27 Am.Jur.2d, Equity, page 626.

        In addition to protecting the public interest, however, courts of equity are concerned with protecting the operator of a lawfully, albeit noxious, business from the result of a knowing and willful encroachment by others near his business.

        In the so-called "coming to the nuisance" cases, the courts have held that the residential [108 Ariz. 185] landowner may not have relief if he knowingly came into a neighborhood reserved for industrial or agricultural endeavors and has been damaged thereby:

"Plaintiffs chose to live in an area uncontrolled by zoning laws or restrictive covenants and remote from urban development. In such an area plaintiffs cannot complain that legitimate agricultural pursuits are being carried on in the vicinity, nor can plaintiffs, having chosen to build in an agricultural area, complain that the agricultural pursuits carried on in the area depreciate the value of their homes. The area being primarily agricultural, and opinion reflecting the value of such property must take this factor into account. The standards affecting the value of residence property in an urban setting, subject to zoning controls and controlled planning techniques, cannot be the standards by which agricultural properties are judged.

"People employed in a city who build their homes in suburban areas of the county beyond the limits of a city and zoning regulations do so for a reason. Some do so to avoid the high taxation rate imposed by cities, or to avoid special assessments for street, sewer and water projects. They usually build on improved or hard surface highways, which have been built either at state or county expense and thereby avoid special assessments for these improvements. It may be that they desire to get away from the congestion of traffic, smoke, noise, foul air and the many other annoyances of city life. But with all these advantages in going beyond the area which is zoned and restricted to protect them in their homes, they must be prepared to take the disadvantages." Dill v. Excel Packing Company, 183 Kan. 513, 525, 526, 331 P.2d 539, 548, 549 (1958). See also East St. Johns Shingle Co. v. City of Portland, 195 Or. 505, 246 P.2d 554, 560-562 (1952).

        And:

"* * * a party cannot justly call upon the law to make that place suitable for his residence which was not so when he selected it. * * *." Gilbert v. Showerman, 23 Mich. 448, 455, 2 Brown 158 (1871).

        Were Webb the only party injured, we would feel justified in holding that the doctrine of "coming to the nuisance" would have been a bar to the relief asked by Webb, and, on the other hand, had Spur located the feedlot near the outskirts of a city and had the city grown toward the feedlot, Spur would have to suffer the cost of abating the nuisance as to those people locating within the growth pattern of the expanding city:

"The case affords, perhaps, an example where a business established at a place remote from population is gradually surrounded and becomes part of a populous center, so that a business which formerly was not an interference with the rights of others has become so by the encroachment of the population * * *." City of Ft. Smith v. Western Hide & Fur Co., 153 Ark. 99, 103, 239 S.W. 724, 726 (1922).

        We agree, however, with the Massachusetts court that:

"The law of nuisance affords no rigid rule to be applied in all instances. It is elastic. It undertakes to require only that which is fair and reasonable under all the circumstances. In a commonwealth like this, which depends for its material prosperity so largely on the continued growth and enlargement of manufacturing of diverse varieties, 'extreme rights' cannot be enforced. * * *." Stevens v. Rockport Granite Co., 216 Mass. 486, 488, 104 N.E. 371, 373 (1914).

        There was no indication in the instant case at the time Spur and its predecessors located in western Maricopa County that a new city would spring up, full-blown, alongside the feeding operation and that the developer of that city would ask the court to order Spur to move because of the new [108 Ariz. 186] city. Spur is required to move not because of any wrongdoing on the part of Spur, but because of a proper and legitimate regard of the courts for the rights and interests of the public.

        Del Webb, on the other hand, is entitled to the relief prayed for (a permanent injunction), not because Webb is blameless, but because of the damage to the people who have been encouraged to purchase homes in Sun City. It does not equitable or legally follow, however, that Webb, being entitled to the injunction, is then free of any liability to Spur if Webb has in fact been the cause of the damage Spur has sustained. It does not seem harsh to require a developer, who has taken advantage of the lesser land values in a rural area as well as the availability of large tracts of land on which to build and develop a new town or city in the area, to indemnify those who are forced to leave as a result.

        Having brought people to the nuisance to the foreseeable detriment of Spur, Webb must indemnify Spur for a reasonable amount of the cost of moving or shutting down. It should be noted that this relief to Spur is limited to a case wherein a developer has, with foreseeability, brought into a previously agricultural or industrial area the population which makes necessary the granting of an injunction against a lawful business and for which the business has no adequate relief.

        It is therefore the decision of this court that the matter be remanded to the trial court for a hearing upon the damages sustained by the defendant Spur as a reasonable and direct result of the granting of the permanent injunction. Since the result of the appeal may appear novel and both sides have obtained a measure of relief, it is ordered that each side will bear its own costs.

        Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

        HAYS, C.J., STRUCKMEYER and LOCKWOOD, JJ., and UDALL, Retired Justice.