Opinion,
Mr. Chief Justice Gordon:This was an action on the case brought by The American Academy of Music against John Ellis, for the alleged obstruction of the plaintiff’s right of way over and upon two certain private ways or alleys, adjacent to and appurtenant to the plaintiff’s premises. The plaintiff’s right to the free and unobstructed use of the said alleys was established by a previous verdict and judgment, rendered in a suit between the same parties, and found in the records of the Common Pleas No. 3 of the said county, at No. 3 September Term 1884, so that we need seek no farther for the plaintiff’s right. The principal obstructions complained of in that case, were the *621erection by the defendant of a shed over one of the alleys, and the closing of it by one or more gates. The present action is substantially for the continuance of the same nuisance, though the narr also charges the erection of the same. As this forms the ground of one of the exceptions, we may as well consider it before proceeding further.
The counsel for the plaintiff in error alleges correctly that the narr, in two of its counts, is for the erection of the obstructions on November 8, 1884, and their continuance from that date up to the bringing of the suit on December 4,1885; whilst the narr in the first suit charges for the erection of the obstructions on January 1,1880, and their continuance from that time up to the bringing of that suit on October 30,1884. He hence urges that the narr in the present suit is in fault in this, that it should have set forth the previous verdict and judgment, and then charged a continuance of the nuisance. Certainly the rules of strict pleading require what is here stated; but what then ? The defendant was not injured thereby. Had the objection been made during the trial, the defect might have been cured by an amendment, and, at all events, he was not prevented from setting up the former judgment by way of estoppel to a recovery of damages for the original erection. Moreover, had the defendant chosen to take advantage of the former recovery, he should have pleaded it in bar, but instead of this he chose to go to trial on the plea of not guilty, and so waived the defect. In this, the case is very similar to that of Smith v. Elliott, 9 Pa. 345, where, under the same defect in the declaration, a like objection was not only made but sustained in the court below. We, however, held the ruling to be erroneoTis, and Mr. Justice Rogkiis, in delivering the opinion of this court, said: “The defendant instead of pleading the former recovery in bar of the action, pleads the general issue. It is not denied that the defendant may give in evidence a former recovery in an action on the case for a nuisance, under the plea of not guilty, but it is not, as the court ruled, conclusive.” A similar mistake was committed by the Court of Common Pleas in the case of Fell v. Bennett, 17 W. N. 117, and was corrected here. These cases rule the point in controversy, and sustain the court below. Nor was the defendant injured thereby, for of the previous verdict he had all the advantage to which, *622under Ms plea, he was entitled, since the plaintiff was allowed to recover only for the continuance of the nuisance.
As most of the remaining assignments are altogether without merit, we will pass them, and notice but one or two of the others.
It is alleged that the obstructions did not materially injure the plaintiff, and therefore no damages were recoverable. But as they were a constant challenge to the plaintiff’s right to have a free and unobstructed way over the alleys, and also in view of the fact that a recovery was had for the erection of the nuisance, this doctrine cannot be entertained. If there was no injury to the plaintiff there could be no nuisance, for the very definition of a nuisance is, “anything that unlawfully works hurt, inconvenience or damage; ” but the former verdict conclusively established the fact that the original obstructions came witlfin the definition here given, and if the erections when first made were nuisances, how can the conclusion be avoided that their continuance must be injurious ? In McCoy v. Danley, 20 Pa. 85, we held that in an action for the continuance of a nuisance by means of a mill dam, the plaintiff was entitled to such punitive damages as would compel the defendant to" abate the nuisance, and tHs though the erection was of great value to the defendant, and the damage to the plaintiff inconsiderable. This, however, is but the re-statement of a doctrine as old as the common law; no man may trespass upon another’s right however insignificant that right may be. On both reason and authority, therefore, the assignment under consideration cannot be sustained. We may here also call attention to the fact, that this case disposes of the exception which impugns the instruction that the jury might give punitive damages.
Again: it is urged, that the learned judge erred in assuming that the gate closing the alley, and the roof covering it were per se nuisances. But how could he assume anything else in the face of the former verdict ? A gate may or may not be an obstruction, depending upon circumstances, wliich were, in this case, properly defined and left to the jury. A grant of a way on winch, at the time of the said grant, a gate is used, and the grantee suffers it to remain an indefinite length of time, must be construed, as was held in Connery v. Brooke, 73 Pa. 80, to have been taken subject to that incumbrance. But clearly tMs *623rule cannot be applied to a case such as the present, where, at the time of the grant, there was no such obstruction, for otherwise the co-grantee would have the power to alter the conditions of the grant at any time he might see fit so to do. The same rule must apply to the covering of the alley. Not only did the former verdict determine the character of the erection, but, without it, the question would naturally arise, by what authority did Ellis undertake, without the assent of the Academy, to make use of the way in this manner ? It is true, the owner of the fee may use the servient soil, as he pleases so that lie does not interfere with the right of his grantee, but Ellis was not the owner of the fee, and hence could not arrogate to himself the rights of such owner. The right, whether in the fee or only in the way, was common to both parties, so that neither, without the assent of the other, had the right to alter the character of the alley in any particular. Nor did the court err in charging that parties who are entitled to a free use of an alley, have the same right in it that the public has in its highways, and that if the way in this case were vacated, the soil would belong to the plaintiff and defendant as tenants in common. By the several grants to these parties, their properties were not only bounded on the alley in controversy, but it was made appurtenant to those properties. Nothing, therefore, was left in the owner, and if the fee did not vest in these grantees it is hard to tell where it is. The case is veiy much like that of Holmes v. Bellingham, reported in 7 C. B., N. S., 329, in which Cockburn, C. J., says: “The direction complained of is, that the learned judge told the jury that there was a presumption in the case of a private way or occupation road between two properties, that the soil of the road belongs usque ad medium to the owners of the adjoining property on either side. That proposition, subject to the qualification which I shall presently mention and which I take it was necessarily involved in what afterwards fell from the learned judge, is in my opinion, a correct one. The same principle which applies to a public road, and wliich is the foundation of tbe doctrine, seems to me to apply with equal force to the case of a private road.” As the doctrine here stated seems to be reasonable and sound, we cannot understand why we should not adopt it. It seems to he admitted that, were the alley public, its vacation would vest in *624each of the parties the unincumbered one half of the fee in severalty, and why this should not apply to a private way, where, just as in the case of a public way, by the grant it was made appurtenant to the several properties, we cannot understand. Without dwelling further on the assignments of error, we are led to the conclusion that in no particular was there a mistrial in the court below.
The judgment is affirmed.