Opinion by
Mr. Chief Justice Jones,
The twenty-five separate actions in trespass here involved were instituted by the respective plaintiffs to recover damages for injury to their several properties allegedly caused by noxious fumes emanating from mine refuse dumps created and maintained by the defendant, Moffat Coal Company, a co-partnership, on land leased from Glen Alden Coal Company in the vi[561]*561cinity of the plaintiffs’ properties. The cases were consolidated for trial to the court below, sitting without a jury, under an express agreement of submission by counsel for the parties in accordance with the provisions of the Act of April 22, 1874, P. L. 109, as amended, 12 PS §688 et seq. All that these appeals bring up for review is the action of the court below in opening judgments in favor of the defendants and permitting the plaintiffs to file exceptions to the trial court’s findings, conclusions and judgment nisi.
A companion case in the same court (Wasohdk v. Moffat, infra) had been tried earlier to a judge and jury and had resulted in a money verdict in favor of the plaintiffs, against the defendants. Upon overruling Moffat Coal Company’s after-verdict motions, the court entered judgment against that company on the verdict but entered judgment n.o.v. in favor of Glen Alden Coal Company, the co-defendant. No appeal was taken from the judgment for Glen Alden Coal Company which consequently became final.
Moffat Coal Company appealed the judgment against it ($1,250.) and the Superior Court unanimously affirmed: see 173 Pa. Superior Ct. 209, 96 A. 2d 163. An allocatur was granted, and, after argument of the appeal, a majority of this court reversed and entered judgment n.o.v. for the appellant defendants: see Waschak v. Moffat, 379 Pa. 441, 109 A. 2d 310. In so doing, this court cited as pertinent authority the rule relative to liability in the case of a private nuisance as contained in the Eestatement, Torts, §822(d), and held, as a matter of law, that “the invasion of the plaintiffs’ land was clearly not intentional” and that, “even if it were, ... it was not unreasonable”. Actually, the case had not been tried on the basis of the indicia of responsibility as specified in the Eestatement. In fact, the point had not been argued or even [562]*562raised in the trial court at any time and was first injected into the case by the defendants on their appeal to the Superior Court which court, upon consideration, rejected the rule as of no applicability to the proven facts of the case.
After the record in the Waschalc case had been remanded to the court below, the defendants were permitted to file in the instant actions amended answers to the complaints, raising the affirmative defense of res judicata on the basis of this court’s decision in the Waschalc case. At the subsequent trial of these cases to the court without a jury, the testimony in the Waschalc case was, by pre-trial agreement and order, submitted to the trial judge as testimony on the question of the defendants’ liability.
In passing upon the evidence applicable to the cases involved in these appeals, the learned trial judge found that the plaintiffs’ properties had been substantially interfered with by the defendants and that the invasion of the plaintiffs’ property rights was intentional. The court was of the further opinion that this was an ultimate inference of fact supported by the basic findings as to the defendants’ knowledge of the attendant physical conditions relative to the dumps and their likely deleterious effects. In support of the view that the finding of intentional invasion was a conclusion of fact, the trial judge cited and quoted from Restatement, Torts, §825(b), as follows: “An invasion of another’s interest in the use and enjoyment of land is intentional when the actor ... (b) knows that it is resulting or is substantially certain to result from his conduct.” However, the court was also of the opinion that the decision in the Waschalc case was res judicata of the issues involved in the instant cases. Thereupon, the court entered judgments nisi on February 6, 1956, in favor of the defendants and against the plaintiffs [563]*563and included also a compulsory nonsuit as to the co-defendant Glen Alden Coal Company.
On February 29, 1956 — just 23 days after entry of the judgment nisi — the defendants by their local counsel filed praecipes causing final judgments to be entered by the prothonotary in favor of the defendants and against the plaintiffs.
Three days later (viz., March 2, 1956), the plaintiffs petitioned the court to open the judgments and permit them to file exceptions to the court’s adjudications and judgments nisi of February 6th, a copy of the proposed exceptions being attached, as an exhibit, to the plaintiffs’ petitions to open. The court granted rules on the petitions which, after argument, were made absolute. The judgments were accordingly opened and the plaintiffs permitted to file their exceptions to the adjudications and judgments nisi. It is that action by the court below which is the subject matter of the defendants’ present appeals.
In reliance on Rule 1048 of the Pennsylvania Rules of Civil Procedure (381 Pa. xxix), the appellants contend that the judgments were entered timely and, therefore, should not have been opened because further proceedings in these cases would be futile. With that contention, we are unable to agree either as to its premise or its conclusion.
Section 2 of the Act of 1874, under which the cases were submitted by agreement of the parties for the trial court’s decision without a jury, expressly allowed thirty days after notice of the decision for the filing of exceptions to the court’s findings and conclusions. It is true that Rule 1048 of the Pa. R. C. P., which relates to trial without jury in trespass actions, prescribes by subsection (d) twenty days for the filing of exceptions to the court’s decision and that subsection (f) suspended section 2 of the Act of 1874, cit. supra [564]*564(i.e., the thirty-day provision for exceptions), insofar as it was inconsistent with Rule 1048. Rule 1048 became effective upon its promulgation on April 26, 1955, and was expressly made applicable to all pending actions which the instant suits then were. But, the Rule was notably not made applicable to extant agreements of submission expressly executed in pursuance of the Act of 1874, supra. Nor can the Rules be reasonably construed as having so intended.
At the time Rule 1048 was adopted, the executed agreements for the submission of these cases for trial by the court without a jury were already on file and plainly evidenced the intent of the parties that they should' have thirty days after the court’s decision within which to file exceptions. These agreements were never changed by any action of the parties. Had the parties, or any of them, intended, subsequent to the adoption of Rule 1048, that the time for filing exceptions should be shortened from thirty to twenty days, they should have expressly so indicated by some affirmative act. The learned court below correctly concluded from the conduct of the parties in the premises that their intent continued to be that they should have thirty days for the filing of exceptions to the court’s decision. The judgments were, therefore, entered prematurely.
What we have thus concluded as the intent of the parties conforms with what the law imputes in the circumstances. In
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Opinion by
Mr. Chief Justice Jones,
The twenty-five separate actions in trespass here involved were instituted by the respective plaintiffs to recover damages for injury to their several properties allegedly caused by noxious fumes emanating from mine refuse dumps created and maintained by the defendant, Moffat Coal Company, a co-partnership, on land leased from Glen Alden Coal Company in the vi[561]*561cinity of the plaintiffs’ properties. The cases were consolidated for trial to the court below, sitting without a jury, under an express agreement of submission by counsel for the parties in accordance with the provisions of the Act of April 22, 1874, P. L. 109, as amended, 12 PS §688 et seq. All that these appeals bring up for review is the action of the court below in opening judgments in favor of the defendants and permitting the plaintiffs to file exceptions to the trial court’s findings, conclusions and judgment nisi.
A companion case in the same court (Wasohdk v. Moffat, infra) had been tried earlier to a judge and jury and had resulted in a money verdict in favor of the plaintiffs, against the defendants. Upon overruling Moffat Coal Company’s after-verdict motions, the court entered judgment against that company on the verdict but entered judgment n.o.v. in favor of Glen Alden Coal Company, the co-defendant. No appeal was taken from the judgment for Glen Alden Coal Company which consequently became final.
Moffat Coal Company appealed the judgment against it ($1,250.) and the Superior Court unanimously affirmed: see 173 Pa. Superior Ct. 209, 96 A. 2d 163. An allocatur was granted, and, after argument of the appeal, a majority of this court reversed and entered judgment n.o.v. for the appellant defendants: see Waschak v. Moffat, 379 Pa. 441, 109 A. 2d 310. In so doing, this court cited as pertinent authority the rule relative to liability in the case of a private nuisance as contained in the Eestatement, Torts, §822(d), and held, as a matter of law, that “the invasion of the plaintiffs’ land was clearly not intentional” and that, “even if it were, ... it was not unreasonable”. Actually, the case had not been tried on the basis of the indicia of responsibility as specified in the Eestatement. In fact, the point had not been argued or even [562]*562raised in the trial court at any time and was first injected into the case by the defendants on their appeal to the Superior Court which court, upon consideration, rejected the rule as of no applicability to the proven facts of the case.
After the record in the Waschalc case had been remanded to the court below, the defendants were permitted to file in the instant actions amended answers to the complaints, raising the affirmative defense of res judicata on the basis of this court’s decision in the Waschalc case. At the subsequent trial of these cases to the court without a jury, the testimony in the Waschalc case was, by pre-trial agreement and order, submitted to the trial judge as testimony on the question of the defendants’ liability.
In passing upon the evidence applicable to the cases involved in these appeals, the learned trial judge found that the plaintiffs’ properties had been substantially interfered with by the defendants and that the invasion of the plaintiffs’ property rights was intentional. The court was of the further opinion that this was an ultimate inference of fact supported by the basic findings as to the defendants’ knowledge of the attendant physical conditions relative to the dumps and their likely deleterious effects. In support of the view that the finding of intentional invasion was a conclusion of fact, the trial judge cited and quoted from Restatement, Torts, §825(b), as follows: “An invasion of another’s interest in the use and enjoyment of land is intentional when the actor ... (b) knows that it is resulting or is substantially certain to result from his conduct.” However, the court was also of the opinion that the decision in the Waschalc case was res judicata of the issues involved in the instant cases. Thereupon, the court entered judgments nisi on February 6, 1956, in favor of the defendants and against the plaintiffs [563]*563and included also a compulsory nonsuit as to the co-defendant Glen Alden Coal Company.
On February 29, 1956 — just 23 days after entry of the judgment nisi — the defendants by their local counsel filed praecipes causing final judgments to be entered by the prothonotary in favor of the defendants and against the plaintiffs.
Three days later (viz., March 2, 1956), the plaintiffs petitioned the court to open the judgments and permit them to file exceptions to the court’s adjudications and judgments nisi of February 6th, a copy of the proposed exceptions being attached, as an exhibit, to the plaintiffs’ petitions to open. The court granted rules on the petitions which, after argument, were made absolute. The judgments were accordingly opened and the plaintiffs permitted to file their exceptions to the adjudications and judgments nisi. It is that action by the court below which is the subject matter of the defendants’ present appeals.
In reliance on Rule 1048 of the Pennsylvania Rules of Civil Procedure (381 Pa. xxix), the appellants contend that the judgments were entered timely and, therefore, should not have been opened because further proceedings in these cases would be futile. With that contention, we are unable to agree either as to its premise or its conclusion.
Section 2 of the Act of 1874, under which the cases were submitted by agreement of the parties for the trial court’s decision without a jury, expressly allowed thirty days after notice of the decision for the filing of exceptions to the court’s findings and conclusions. It is true that Rule 1048 of the Pa. R. C. P., which relates to trial without jury in trespass actions, prescribes by subsection (d) twenty days for the filing of exceptions to the court’s decision and that subsection (f) suspended section 2 of the Act of 1874, cit. supra [564]*564(i.e., the thirty-day provision for exceptions), insofar as it was inconsistent with Rule 1048. Rule 1048 became effective upon its promulgation on April 26, 1955, and was expressly made applicable to all pending actions which the instant suits then were. But, the Rule was notably not made applicable to extant agreements of submission expressly executed in pursuance of the Act of 1874, supra. Nor can the Rules be reasonably construed as having so intended.
At the time Rule 1048 was adopted, the executed agreements for the submission of these cases for trial by the court without a jury were already on file and plainly evidenced the intent of the parties that they should' have thirty days after the court’s decision within which to file exceptions. These agreements were never changed by any action of the parties. Had the parties, or any of them, intended, subsequent to the adoption of Rule 1048, that the time for filing exceptions should be shortened from thirty to twenty days, they should have expressly so indicated by some affirmative act. The learned court below correctly concluded from the conduct of the parties in the premises that their intent continued to be that they should have thirty days for the filing of exceptions to the court’s decision. The judgments were, therefore, entered prematurely.
What we have thus concluded as the intent of the parties conforms with what the law imputes in the circumstances. In Beaver County Building & Loan Association v. Winowich, 323 Pa. 483, 489, 187 A. 481, Mr. Justice (later Chief Justice) Stern said that “In determining what constitutes the obligation of a contract, no principle is more firmly established than that the laws which were in force at the time and place of the making of the contract enter into its obligation with the same effect as if expressly incorporated [565]*565in its terms [citing cases].” The foregoing statement was later quoted in support of the proposition that “When the parties entered into the agreement to arbitrate they became bound by the Arbitration Act of 1927, and that very act supplied the ‘power to substitute another arbitrator’ upon the happening of the contingency which happened here”: see J. M. Dams Company v. Shaler Township, 332 Pa. 134, 139-140, 2 A. 2d 708. Again, in Fischer & Porter Company v. Porter, 364 Pa. 495, 501, 72 A. 2d 98, we quoted with approval from the Winowich case, as above, and further said that “the terms of a contract requiring the application of a statute are to be construed according to their meaning as used in the statute.”
Even had the effect of Buie 1048 actually been to shorten the time for exceptions under an agreement of submission already in force under the Act of 1874, the court below could not have been charged with an abuse of discretion in opening the judgments upon the plaintiffs’ prompt applications therefor when they had understood that they had thirty days for the filing of exceptions.
So much would suffice for answer to what these appeals brought up for review except for the appellants’ argument that the decision in Waschak v. Moffat, supra, rules these cases and that it would therefore be a futile gesture to proceed further with them. Since appellants have vigorously pressed this contention — devoting to it the greater part of their brief in this court —it becomes necessary that we treat with it lest an incorrect inference should be drawn were we to pass over it in silence.
The decision in the Waschak case is by no means res judicata of the issues in the cases now before us. At least one, if not more, of the requisites of the doctrine is absent. Specifically, there is a patent want of [566]*566identity of parties plaintiff in the Waschak and other cases. In Siegfried v. Boyd, 237 Pa. 55, 59, 85 A. 72, it was plainly declared that, — “In order to make a matter res adjndicata there must be a concurrence of the four following conditions: (1) Identity in the thing sued for; (2) identity of the cause of action; (3) identity of persons and of parties to the action; (4) identity of the quality in the persons for or against whom the claim is made . . .” The foregoing category of the requirements for res judicata has since been quoted or cited with approval many times. See Commonwealth ex rel. v. Kelly, 287 Pa. 139, 144, 134 A. 514; Woodburn v. Pennsylvania Railroad Co., 294 Pa. 174, 176, 144 A. 93; West Leechburg Borough v. Allegheny Township School Directors, 300 Pa. 73, 78, 150 A. 88; Thommen v. Aldine Trust Co., 302 Pa. 409, 416, 153 A. 750; Bennett v. Erwin, 325 Pa. 330, 333, 189 A. 675; Long v. Daylor, 327 Pa. 484, 489, 194 A. 495; American Surety Company of New York v. Dickson, 345 Pa. 328, 332, 28 A. 2d 316; Cordon, Secretary of Banking v. Hartford Sterling Company, 350 Pa. 277, 285, 38 A. 2d 229; Jones v. Costlow, 354 Pa. 245, 252, 47 A. 2d 259; Fisher Building Permit Case, 355 Pa. 364, 367, 49 A. 2d 626. In Burke v. Pittsburgh Limestone Corp., 375 Pa. 390, 395, 100 A. 2d 595, we recently summarized the doctrine of res judicata as follows: “A final valid judgment upon the merits by a court of competent jurisdiction bars any future suit between the same parties or their privies, on the same cause of action. Identity of the thing sued for, the causes of action, of the parties to the action, and of the quality or capacity of the parties suing or sued, is essential to the application of the doctrine [citing Fisher Building Permit Case, supra].”
So far as the decision in the Waschak case has any bearing on the instant actions, it is at most stare de[567]*567cisis as to the applicability of §822(d) of tbe Bestatement, Torts. It does not constitute an adjudication of tbe facts at issue which, in each case, are for tbe court below, as tbe fact-finder, to resolve as well as determine preliminarily what are matters of fact as distinguished from matters of law.
Tbe respective orders opening the several judgments are affirmed and tbe records remanded to the court below for further proceedings.