Opinion by
Rice, P. J.,
In an action for the continuance of a nuisance, a verdict and judgment for the plaintiff in a former action in which the same matter was in controversy between the parties, are conclusive evidence, “ for when a court of competent jurisdiction has adjudicated directly upon a particular matter, the same point is not open to inquiry in a subsequent suit for the same cause, and between the same parties : ” Kilheffer v. Herr, 17 S. & R. 319; Bell v. Allegheny Co., 184 Pa. 296, and cases there cited; Hartman v. Incline Plane Co., 2 Pa. Superior Ct. 123. Applying this well settled principle to the casé in hand, we must hold that the two former recoveries are conclusive adjudications: (1) that the structure described in Hartman v. Incline Plane Co., 159 Pa. 442, was erected by the defendant and was maintained by it down to, and including, the time of the grievance complained of in the second suit; (2) that it was negligently or improperly constructed; (3) that, by reason thereof, it was the cause of the injuries complained of in the former suits,, namely, that the brick wall of the plaintiff’s house became, and was kept, so saturated with water that the plaster and paper on the inside were injured, and some of the rooms were rendered damp, mouldy and untenantable.
1. Having proved by the record of the charter, itself, the incorporation of the defendant for the erection and maintenance of an inclined plane railway, and by the records of the two former suits that the structure was erected and maintained by it (admittedly on its own land), as part of its road, it might well be presumed, in the absence of any evidence to the contrary, that it continued to be the responsible owner of it. We say this, not because the records of the former suits have any conclusive effect as proof of present ownership, — the case would be the same if the original construction and ownership had been proved in any other way, — but because of “ the experienced con[443]*443tinuance or permanency of longer or shorter duration in human affairs: ” 1 Greenleaf on Evidence, 41. When a person is shown to have been the owner of property, such ownership is ordinarily presumed to continue until some change or alienation is shown: 1 Jones on Evidence, 53; 2 Wharton on Evidence, 1286. This is a very reasonable presumption when the person shown to have been the owner is a party to the suit, and offers no evidence to show that he has parted with the ownership or control. But the plaintiff’s allegation* does not rest for support on this presumptive evidence alone. Throughout the trial, in the questions put to the witnesses and in the answers given by them, the structure is spoken of as the wall or abutment of the Incline Plane Company, or of the Pittsburg Incline Plane Company. No objection was raised to these questions and answers, no suggestion was made that more explicit proof would be required, and the defendant did not offer to show that it had parted with the responsible ownership of the property. The plaintiff, the court, and the jury might well have assumed that the fact was not in controversy. At all events, it would have been manifest error, if the court had affirmed the defendant’s second point, and charged the jury that there was no evidence that the structure complained of belonged to, or was maintained by, the defendant. The second assignment is overruled.
2. Equally untenable is the position, that there is no evidence that the nuisance, the existence of which was conclusively established by the former judgments, was continued. It is true, none of the plaintiff’s witnesses testified in so many words, that the defendant’s structure remained in precisely the same condition after the trial of the second suit as before. It does, however, plainly appear from their testimony, fairly interpreted, that the structure was still maintained, and that the plaintiff’s building continued, without interruption, to be injuriously affected in precisely the same manner and place as before. It was a fair inference of fact, in the absence of evidence of a new cause for the continuance of the injury, or of an alteration of the structure, that the defects in it had not been removed. This is not casting the burden of proof on the defendant, but simply permitting the jury to draw a very natural and legitimate inference from the facts proved.
The portion of the charge made the subject of the fifth assign[444]*444ment should be read with the context, in which the question whether the damage to the plaintiff’s property was the result of the continued maintenance by the defendant of the negligently constructed structure was fairly left to the jury. The nonproduction of pertinent evidence, which, if it exists, is peculiarly within the control of the parties whose interest it would be to produce it, is, of itself, often a circumstance of greater or less weight which a jury may take into consideration, and it is not reversible error for the trial judge to call their attention to it, provided he does it fairly, and without giving binding instructions as to the effect of the omission. See 2 P. & L. Dig. of Dec. and Ency. of Pa. Law, 2681, Ginder v. Bachman, 8 Pa. Superior Ct. 405, and cases there cited. The first and fifth assignments are overruled.
3. The fourth assignment is based on the proposition that the defendant being a corporation, invested with the right of eminent domain, and authorized to erect and maintain the structure complained of, the plaintiff, having in a prior case recovered damages resulting therefrom, is barred from a recovery for a continuation of the injuries. In considering this proposition it is to be noticed that the plaintiff is a life tenant, and that in the former actions, she sued for and recovered damages for the injury to her possession, merely, which had accrued during the periods ending respectively on the date of the confessed judgments in the first action, and of the trial of the second action. If, therefore, she is precluded from recovering in the present action, the damages she has sustained since, it is not because the former recoveries actually included all the damages past and prospective to her estate. It is to be observed further, that in the second suit the plaintiff alleged, and recovered on the ground, that the injury was wrongfully continued after the judgment in the first suit. This was an essential part of her case. “ The rule that what has been judicially determined shall not again be made the subject of controversy, extends to every question’in the proceeding which was legally cognizable, and applies where a party has neglected the opportunity of trial, or has failed to present his case or defense, in whole or in part, under the mistaken belief that the matter would remain open and could be made the subject of another proceeding. . . . Generally the estoppel extends to any allegation which was at issue and determined [445]*445in the course of the proceeding, which went to establish or disprove either the plaintiff’s case or that set up by the defendant:” Schwan v. Kelly, 173 Pa. 65. The question raised, namely the bar of the first recovery, was legally cognizable in the second suit, and, whether urged upon the attention of the court or not, it may be argued with much force that the recovery in that suit was an implied adjudication that the injury to the plaintiff was not in its nature, and at its inception, a complete and permanent one, for which, in fact or presumably, she had recovered compensation, but was what she claimed it to be, a continuing tort resulting in further damages.
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Opinion by
Rice, P. J.,
In an action for the continuance of a nuisance, a verdict and judgment for the plaintiff in a former action in which the same matter was in controversy between the parties, are conclusive evidence, “ for when a court of competent jurisdiction has adjudicated directly upon a particular matter, the same point is not open to inquiry in a subsequent suit for the same cause, and between the same parties : ” Kilheffer v. Herr, 17 S. & R. 319; Bell v. Allegheny Co., 184 Pa. 296, and cases there cited; Hartman v. Incline Plane Co., 2 Pa. Superior Ct. 123. Applying this well settled principle to the casé in hand, we must hold that the two former recoveries are conclusive adjudications: (1) that the structure described in Hartman v. Incline Plane Co., 159 Pa. 442, was erected by the defendant and was maintained by it down to, and including, the time of the grievance complained of in the second suit; (2) that it was negligently or improperly constructed; (3) that, by reason thereof, it was the cause of the injuries complained of in the former suits,, namely, that the brick wall of the plaintiff’s house became, and was kept, so saturated with water that the plaster and paper on the inside were injured, and some of the rooms were rendered damp, mouldy and untenantable.
1. Having proved by the record of the charter, itself, the incorporation of the defendant for the erection and maintenance of an inclined plane railway, and by the records of the two former suits that the structure was erected and maintained by it (admittedly on its own land), as part of its road, it might well be presumed, in the absence of any evidence to the contrary, that it continued to be the responsible owner of it. We say this, not because the records of the former suits have any conclusive effect as proof of present ownership, — the case would be the same if the original construction and ownership had been proved in any other way, — but because of “ the experienced con[443]*443tinuance or permanency of longer or shorter duration in human affairs: ” 1 Greenleaf on Evidence, 41. When a person is shown to have been the owner of property, such ownership is ordinarily presumed to continue until some change or alienation is shown: 1 Jones on Evidence, 53; 2 Wharton on Evidence, 1286. This is a very reasonable presumption when the person shown to have been the owner is a party to the suit, and offers no evidence to show that he has parted with the ownership or control. But the plaintiff’s allegation* does not rest for support on this presumptive evidence alone. Throughout the trial, in the questions put to the witnesses and in the answers given by them, the structure is spoken of as the wall or abutment of the Incline Plane Company, or of the Pittsburg Incline Plane Company. No objection was raised to these questions and answers, no suggestion was made that more explicit proof would be required, and the defendant did not offer to show that it had parted with the responsible ownership of the property. The plaintiff, the court, and the jury might well have assumed that the fact was not in controversy. At all events, it would have been manifest error, if the court had affirmed the defendant’s second point, and charged the jury that there was no evidence that the structure complained of belonged to, or was maintained by, the defendant. The second assignment is overruled.
2. Equally untenable is the position, that there is no evidence that the nuisance, the existence of which was conclusively established by the former judgments, was continued. It is true, none of the plaintiff’s witnesses testified in so many words, that the defendant’s structure remained in precisely the same condition after the trial of the second suit as before. It does, however, plainly appear from their testimony, fairly interpreted, that the structure was still maintained, and that the plaintiff’s building continued, without interruption, to be injuriously affected in precisely the same manner and place as before. It was a fair inference of fact, in the absence of evidence of a new cause for the continuance of the injury, or of an alteration of the structure, that the defects in it had not been removed. This is not casting the burden of proof on the defendant, but simply permitting the jury to draw a very natural and legitimate inference from the facts proved.
The portion of the charge made the subject of the fifth assign[444]*444ment should be read with the context, in which the question whether the damage to the plaintiff’s property was the result of the continued maintenance by the defendant of the negligently constructed structure was fairly left to the jury. The nonproduction of pertinent evidence, which, if it exists, is peculiarly within the control of the parties whose interest it would be to produce it, is, of itself, often a circumstance of greater or less weight which a jury may take into consideration, and it is not reversible error for the trial judge to call their attention to it, provided he does it fairly, and without giving binding instructions as to the effect of the omission. See 2 P. & L. Dig. of Dec. and Ency. of Pa. Law, 2681, Ginder v. Bachman, 8 Pa. Superior Ct. 405, and cases there cited. The first and fifth assignments are overruled.
3. The fourth assignment is based on the proposition that the defendant being a corporation, invested with the right of eminent domain, and authorized to erect and maintain the structure complained of, the plaintiff, having in a prior case recovered damages resulting therefrom, is barred from a recovery for a continuation of the injuries. In considering this proposition it is to be noticed that the plaintiff is a life tenant, and that in the former actions, she sued for and recovered damages for the injury to her possession, merely, which had accrued during the periods ending respectively on the date of the confessed judgments in the first action, and of the trial of the second action. If, therefore, she is precluded from recovering in the present action, the damages she has sustained since, it is not because the former recoveries actually included all the damages past and prospective to her estate. It is to be observed further, that in the second suit the plaintiff alleged, and recovered on the ground, that the injury was wrongfully continued after the judgment in the first suit. This was an essential part of her case. “ The rule that what has been judicially determined shall not again be made the subject of controversy, extends to every question’in the proceeding which was legally cognizable, and applies where a party has neglected the opportunity of trial, or has failed to present his case or defense, in whole or in part, under the mistaken belief that the matter would remain open and could be made the subject of another proceeding. . . . Generally the estoppel extends to any allegation which was at issue and determined [445]*445in the course of the proceeding, which went to establish or disprove either the plaintiff’s case or that set up by the defendant:” Schwan v. Kelly, 173 Pa. 65. The question raised, namely the bar of the first recovery, was legally cognizable in the second suit, and, whether urged upon the attention of the court or not, it may be argued with much force that the recovery in that suit was an implied adjudication that the injury to the plaintiff was not in its nature, and at its inception, a complete and permanent one, for which, in fact or presumably, she had recovered compensation, but was what she claimed it to be, a continuing tort resulting in further damages. But, be that as it may, we are not willing to concede that the fact that the defendant is a quasi-public corporation, invested with the right of eminent domain is of itself conclusive against the right of an adjacent landowner, to maintain a second or third action for what, if maintained by a private person, would be a continuing nuisance. In a case relied on by the defendant’s counsel, and which goes as far as any to sustain his proposition, the rule was stated thus : “But even where the injury complained of, either by a servient owner or an adjacent proprietor, is due to the negligent construction of such public works as railways, which it is the policy of the law to encourage, if the injury is permanent, and affects the value of the estate, a recovery may be had at law of the entire damages in one action: ” Ridley v. Seaboard R. R. Co., 118 N. C. 996; 32 L. R. A. 708. Grant this to be the general rule even in case of a negligent construction, yet it is seen that it applies only to cases where “ the injury is permanent and affects the value of the estate.” This important qualification of the rule is, recognized in our own eases. Where the damages for the tort have been assessed upon the principle which governs in proceedings where land is taken, injured, or destroyed in the lawful exercise of the right of eminent domain, it has been because the plaintiff’s property was permanently appropriated or injured, or the injury to it resulted from a cause y^hich was either permanent in its character, or was treated as permanent by the parties. But there is no conclusive presumption that the injury of which the plaintiff complained resulted from a cause that was permanent, in the sense that it was an inseparable incident to the construction and operation of the defendant’s road, or even to the mainte[446]*446nance of the structure. The question whether a tort is or is not permanent is one of fact, depending upon the circumstances of each case: Sedgwick on Damages, 924; Seely v. Alden, 61 Pa. 302; and neither the fact that the tort feasor is invested with the right of eminent domain, nor the fact that the negligently constructed structure is permanent, is invariably and under all circumstances conclusive of the question. If, for example, the defects in it which are the causes of the injury could be remedied without affecting the purpose for which it was erected, and perhaps at trifling expense as compared with the damages that would have to be paid, if it were to be permanently maintained in an unaltered condition, no one would oontend that the damages must necessarily be measured by the difference between the value of the land immediately before the erection, and its value as affected by the completed structure. In such a case (which is a supposable one here, for aught that the records of the former recoveries show), the defendant not only might assent to, but might properly insist upon, having the plaintiff’s damages assessed upon the theory that the injury was not in its nature one that was to continue indefinitely. The point is well illustrated in a Massachusetts case. In an action for injuries alleged to have resulted to the plaintiff’s land from a negligent construction and maintenance of a dam and reservoir on the defendant’s land, it was held that only the damages which had accrued prior to the commencement of the action could be recovered. The court said: “The defendant may prefer to change his use of his property so far as to make his conduct lawful. In the present case, we cannot say that the defendant .may not repair or reconstruct its dam and reservoir in such a way as to prevent percolation, with much less expenditure than would be required to pay damages for a permanent injury to the plaintiff’s land: ” Aldworth v. City of Lynn, 153 Mass. 53. If there be different modes of measuring damages depending on the circumstances, the evidence should be heard and the jury instructed according to the nature of the case : Seely v. Alden, 61 Pa. 302. The evidence given on the former trial is not before us, but, presumably, the damages were measured in the mode which it justified. Certainly there is no conclusive presumption that the injury alleged •and proved there was, in its very nature, permanent. We con-[447]*447■elude, therefore, without further discussion, that the former recoveries did not estop the plaintiff from recovering damages that have accrued since. The fourth assignment is overruled.
Whether or not the defendant might have elected in the present action, or may elect in any future action, to have the tort treated as a permanent one, and have the damages assessed ■on that basis, and thus end further liability, is a question not distinctly raised by the record, and therefore we will not discuss it.
The judgment is affirmed.