There can be no doubt of the soundness of the position assumed by plaintiff’s counsel, that the defendants are estopped from raising the question of title in this action. That was a question which was distinctly and specifically put in issue by the pleadings in the former suit, and was tried and determined. The judgment there rendered is, upon perfectly well settled principles of law, conclusive upon the defendant. The question of title is no more open to further litigation between the parties, than the amount of recovery, or any other question involved in that suit. It .is believed that no authorities need be cited to a proposition of law so elementary in its character and general in its application, as that a judgment of *32a court of competent jurisdiction, over the subject matter and parties is conclusive upon any matter actually put in issue and necessarily decided in the cause. In the former action the plaintiffs alleged in their complaint that they were the owners and in possession of the lands flowed; and they sought to recover, and did in fact recover, damages against the defendants for overflowing them. 23 Wis., 261. The question of title was a material issue, and must have necessarily been decided with the other questions involved. This sufficiently appears upon the record in that suit. The conclusive effect, then, of the former judgment as to the plaintiffs’ title to the land overflowed, cannot be questioned. B^v an inflexible rule, the defendants are estopped from raising that question in this action, or controverting their title to the land overflowed by the dam or water power in question.
Another point taken by the counsel for the defendants is, that there was no evidence introduced on the trial which tended to show any liability on the part of Mrs. Ann M. G. Smith, or of Charles D. Mead, trustee of her separate estate, for erecting or maintaining the dam which caused the flowage, and therefore that a nonsuit should have been granted so far as they were concerned. The action is not only for erecting, but for keeping up and maintaining the dam, which obstructs the natural flow of the water and causes the same to set back and overflow the plaintiffs’ land. And in the complaint it is alleged, among other things, that the defendant Ann M. C. Smith is the wife of A. Hyatt Smith, and that the defendants, since July, 1862, to the present time, have had title to the land upon which the dam is erected, and own it and the water power thereby created. The answer states that the dam was originally erected by the defendant A. Hyatt Smith and one Ira Miltimore, and is kept up and maintained by their grantees, successors and assigns, by virtue of certain legislative acts therein specified. It is further averred in the answer, that the defendants A. Hyatt Smith and Ann M. 0. Smith have no legal *33title to tbe land upon which the dam now stands and was erected, but that the legal title to the same is in the defendant Charles JD. Mead, as trustee of the separate estate of Mrs. Smith, and has been since May, 1861. -The action being for damages resulting from the continuance of the nuisance, as well as for its erection, it is sufficient to show that the injury was caused by the authority of the defendants, or that, having acquired title to the land after the nuisauce was erected, they have continued it. In Slight v. Gutzlaff, 35 Wis., 675, it was held that when a lessee or grantee continues a nuisance of a nature not essentially unlawful, erected by his lessor or grantor, he is liable to an action for it after notice to reform or abate it. There can be no doubt, under the authorities ancient and modern, that an action lies against him who erects, and against him who continues a nuisance erected by another. The continuance, and every use of that which is, in its erection and use, a nuisance, is a new nuisance, for which the party injured has a remedy for his damages. In addition to the cases cited in Slight v. Gutzlaff, see Staple v. Spring, 10 Mass., 72; Hodges v. Hodges, 5 Met., 205; Conhocton Stone Co. v. Buffalo,. N. Y. & Eric R’y, 52 Barb., 390; where it is held that an action can be maintained against the party continuing the nuisance, whether he be the original wrongdoer or his alienee.
From the allegations in the answer we must assume that the whole beneficial estate and right of possession to the dam and water power were in Mrs. Smith. She, being the party beneficially interested in maintaining the dam, ought to be before the court in a proceeding to abate it. Her rights may be seriously affected by the j udgment. And, upon the decisions above cited, undoubtedly both Mrs. Smith and Mead, the holder of the legal title, are liable for the continuance of the nuisance. They have succeeded to the title of the original wrongdoer, and come within the application of the principle of law established by them. “ The right of action is given to indemnify the party injured, and is founded on the wrong of *34the party maintaining the nuisance. If the continuance be a fresh nuisance, then it is a wrongful act done and committed, distinct and independent of the first and original wrongful acts creating the nuisance.” Conhocton Stone Co. v. R’y Co., supra.
The defendants further set up and rely upon the statute of limitations to defeat the action. It is stated in the answer, that the lands have been flowed by reason of the dam more than ten years next preceding the commencement of the suit. This, it is insisted, constitutes a complete bar under ch. 184, Laws of 1862. The construction which has been given this statute, and which we have no doubt is the correct one, is, that in order to gain a prescriptive right under it, the flowage or use of the land must have continued adversely for the period of ten years. Ruehl v. Voight, 28 Wis., 153. See also Rooker v. Perkins, 14 Wis., 80; Haag v. Delorme, 30 id., 591. Now it appears from the pleadings in this case, that the right of the defendants to use or flow the land has been constantly challenged and denied by the plaintiffs. In May, 1861, they commenced an action tore-cover damages for the injury caused by the dam, and obtained judgment. In 1862, they commenced another action for the same purpose. 23 Wis., 261. Also an action was commenced to abate the dam as a nuisance, and for an injunction to restrain the defendants from rebuilding the same. 16 Wis., 662. By these legal proceedings the plaintiffs have almost from the outset resisted the claim of the defendants to the use of the land, and have attempted to assert and enforce their own rights as owners. They seem to have done everything in their power to vindicate their absolute title and ownership to the lands, and to interrupt the possession of the defendants and prevent it from ripening into a title by lapse of time. All these facts and circumstances rebut all presumption that the use and enjoyment by the defendants have been- adverse in any legal sense. “ An easement in the land of another can be acquired by adverse user only with the acquiescence of the owner of the land in its exercise under a claim of right,per patüntiam veri domini, *35qui scivit el non prohibuit, sedpermisii de consensu tácito.” Powell v. Bogg, 8 Gray, 441. Prof. Washburn, in bis work on Easements and Servitudes, states the doctrine on the subject as follows : “ In the next place, the use and enjoyment of what is claimed must have been adverse, under a claim of right, exclusive, continuous, iwdnterrupted, and with the knowledge and acquiescence of the owner of the estate in, over or out of which the easement prescribed for is claimed, and while such owner was able in law to assert and enforce his rights, and to resist such adverse claim if not well founded. And it must, moreover, be of something which one party could have granted to the other.” Oh. I, sec. IV, pi. 26. In note 2 he cites many cases in support of the proposition" stated in the text; and it would be very easy to increase the number to almost any extent. The pleadings and evidence'prove most conclusively that the defendants have not been in the exclusive, uninterrupted enjoyment of the land flowed,- with the acquiescence of the plaintiffs, for any period whatever; and there is no ground for saying that the bar of the statute applies. If the statute were held to apply to this case, it is manifest that, by parity of reasoning, it would have to be extended to a case where the land was flowed under a license or lease from the owner for ten years. We feel confident in assuming that the legislature never intended the act of 1862 should have any such unnatural construction. It was obviously intended to apply only where the user had been adverse in the legal sense of the term. This implies acquiescence on the part of the owner in the use, and not a constant resistance and denial of the claim.
Another question arising upon the'requests asked by the defendants and refused is, whether the former recovery is a bar to any claim for damages resulting from the' flowage prior to the verdict in that suit. ~We have already applied the doctrine of estoppel to the question of plaintiffs’ title; and if damages might have been recovered, in the former suit, up to the time *36tbe verdict was rendered, instead of up to tbe time tbe action was commenced, the same rule would govern in respect to any claim for damages prior to that recovery. But tbe following-cases clearly establish tbe rule of damages in actions of this kind, and show that tbe plaintiff can only recover for injuries actually sustained before suit brought: Blunt v. McCormick, 8 Denio, 283; Mahon v. The New York Central R'y, 24 N. Y., 658; Beckwith v. Griswold, 29 Barb., 291; The Town of Troy v. Cheshire R’y, 3 Foster, 83: McKeon v. See, 4 Robertson, 450; Thayer v. Brooks, 17 Ohio, 489; Duncan v. Markley, 1 Harper, 276. Tbe reason of this rule is obvious. A person injured by a continuing nuisance has bis action for each day the nuisance is maintained. But he cannot recover prospective damages which had not been sustained when the action was commenced, and which cannot be included in his writ. Por any future damage, he may recover in an action baaed upon the continuance of the injurious cause ; and in such action it is no answer to say there has been a previous recovery of damages occasioned- by the wrongful cause. Every continuance of the nuisance is a fresh one, for which there may be an independent recovery, from time to time after the damages have accrued. And this feature distinguishes the case from Birchard v. Booth, 4 Wis., 67; Weisenberg v. The City of Appleton, 26 id., 56, and that class of cases, where, if the injury is of a permanent character, the plaintiff is allowed to recover prospective damages because he is only entitled to bring one action. And such cases as Vandervoort v. Gould, 36 N. Y., 640, are likewise unlike this, on account of the provision of the statute which enabled a party to unite in the same complaint a claim to recover the possession of real property and a claim for damages for withholding the same. Under the latter claim damages up to the day of the trial were recovered. In the present case, the dam might have been lowered, or the nuisance abated, imrnedi-diately after the commencement of the former suit; ■ and this furnishes an additional reason for limiting the recovery in that *37suit to such damage as had actually happened. But each day’s wrongful continuance of the flowage may occasion further injury, which will form the basis of a. new action.
The judgment in the case is in the alternative, that the plaintiffs recover $912.50, damages and Costs, for the past injury, and that the dam be abated and removed ; or, upon the defend-, ants paying $2,937.50, with interest and costs, the plaintiffs be perpetually enjoined from enforcing the judgment for a removal of the dam, and that the defendants and their assigns have a perpetual right to maintain -it at its present height so far as the plaintiffs are concerned. This accords with the view taken of the equities of the case when it was formally before this court. 23 Wis., 261. It was then intimated, as important manufacturing interests were dependent on the continuance of the dam, tha’t a court might properly refuse to abate it upon the defendants making compensation for the entire,damages which the plaintiffs had sustained, and which they would sustain by its being maintained at its present height. The plaintiffs do not complain of the judgment in this form; and surely it would seem, under the circumstances, that the defendants have no reason to, since it fully protects their rights and interests.
This disposes of all the material questions which we .deem it necessary to notice.
By the Court. — The-judgment of the circuit court is affirmed.