dissenting.
For the reasons following, I respectfully dissent.
“Res judicata” literally translated means the matter has been adjudged. As a working legal principle it includes a “thing definitely settled by judicial decision, judicial judgment or judicial opinion.” (Emphasis added.) Smith v. Smith, 299 S.W.2d 32, 35 (Mo.App.1957). The doctrine embodied in the concept provides a complete bar to any subsequent action; however, res judicata is an affirmative defense, Rule 55.08, which must be pleaded and proved by the party asserting it. Newton v. Newton, 622 S.W.2d 23, 25 (Mo.App.1981); Dallas v. Dallas, 233 S.W.2d 738, 734 (Mo.App.1950).
In some cases applicability of res judica-ta is determinable merely from an inspection of the record and becomes a question of law for the court. Agnew v. Union Construction Co., 291 S.W.2d 106, 109 (Mo.1956). However, when as here its application requires extrinsic evidence it becomes a question of fact and must go to the jury. Tutt v. Price, 7 Mo.App. 194 (1879); 50 C.J.S. Judgments sec. 846 (1947). Because the availability of the affirmative defense in this case rested on the presentation of extrinsic evidence, it was incumbent on the City to request an instruction submitting the question to the jury, State ex rel. Highway Comm. v. City of Washington, 533 S.W.2d 555, 559 (Mo.1976), and despite a warning to the City during the instruction conference that the issue was one for the jury, it failed or elected not to offer such instruction thereby waiving and foreclosing its affirmative defense. Id.
The meager record before us indicates that on December 30, 1977 the City sought to condemn and carve approximately IV2 acres from the Owens’ 109 acre farm home in Greene County. The condemnation petition described the land to be taken as tract No. 1 James River Lift Station and Force Main. In the sparsest terms it described the City’s purpose in condemning the land as:
to construct the James River Lift Station, the Ward Branch Trunk Sewer and James River Interceptor and to maintain public sanitary sewers for said City.
The order of taking was granted and the Commissioners appointed to assess damages concluded their duties by filing a report on April 28, 1978 fixing damages to the Owens for appropriation of land for the lift station at $22,651.
The lift station was subsequently constructed approximately 100 yards from the Owens’ home, and when placed in operation during January 1981, began to emit foul odors and emanate excessive noise. The station constructed employs two 400-horse-power electric pumps which operate alternately forcing untreated sewage through an inclined 24-inch force main a distance of 13,000 feet to a higher elevation. The pumps operate from 6 to 24 hours per day, and there is an additional 185 horsepower diesel generator for emergency power which is run for testing purposes once each week. As a part of the total system, a variety of fans and pumps contribute to the resulting noise level. An employee of the City involved in the operation and maintenance of pump stations described how raw sewage is collected from a large geographic area by gravity lines in a large open reservoir at the lift station known as a “wet well.” He admitted that raw human waste is gathered in this reservoir and that during this process the waste “ferments,” heightening the malodorous fumes emitted by the system. From the “wet well” this fermented sewage is pumped into the force main by the machinery housed on the 1½ acre plot.
*22Witnessing these sorry developments, the Owens filed the present suit for permanent nuisance and in June 1982 dismissed their exceptions in the condemnation proceeding. Because the City had filed no exceptions to the Commissioners’ report, the Owens’ dismissal terminated that action.
In this suit for permanent nuisance,1 the City filed its amended answer alleging the judgment in the condemnation action as res judicata and a bar to the claims presented here. The City argued the award of damages in early 1978 for taking the land by condemnation included the diminution in value to the remaining portion of the Owens’ property occasioned by stench and noise emanating after January 1981 from operation of the plant, or that if it did not, the Owens could have received compensation in the original proceeding. The defendant City concludes that in either instance the Owens are foreclosed as a matter of law by the doctrine of res judicata from recovering damages in the current proceeding.
The majority opinion falls into the trap of confusing res judicata as a matter of law with res judicata as a question of fact and erroneously makes a quantum leap from an insufficient record to its conclusion reversing the jury’s verdict as a matter of law. In so doing the majority fails to view the evidence in the light most favorable to the plaintiffs and accord them the benefit of all reasonable inferences. Boyle v. Colonial Life Ins. Co. of America, 525 S.W.2d 811, 815 (Mo.App.1975). Instead they seize upon certain pieces of contrary evidence and gratuitously infer that the original award must necessarily have included some damages for smell and noise.2 It then infers that this damage necessarily, as a matter of law, included the excessive and unusual odors and noise which finally occurred and became thereafter known to the Owens; or alternatively, that such excessive odor and noise level could have been anticipated and if damages therefor were not included, they should have been. By accepting this argument the majority heaps inference on inference and overlooks the record which belies the inferences so indulged. Simply put, the majority mistakenly relieves the City of the burden of proving its affirmative defense by the preponderance of the evidence. As the court so aptly stated in Boyle:
“The burden of proving the affirmative defense pleaded by defendant was upon defendant. * * ⅜ It is the established rule in this State that, where plaintiff has made out a prima facie case, it is beyond the power of the trial court to direct a verdict in favor of defendant where defendant has the burden of establishing an affirmative defense, unless such defense is conclusively established by evidence which is conceded by plaintiff to be true, or is established by documentary evidence which is of such a character as to be binding upon plaintiff and thereby to estop him from denying it.” [Emphasis in original.]
In reviewing the action of a trial court in ruling on defendant’s motion for a directed verdict (whether ruled at the close of plaintiff’s evidence or at the close of all the evidence, and whether sustained or overruled) the reviewing court must determine whether plaintiff *23made a submissible case, and in so doing, the plaintiff is entitled to the most favorable view of all the evidence and must be given the benefit of all favorable inferences to be drawn therefrom.
Id. at 815 (citations omitted). The majority opinion evinces a convenient disregard of these precepts.
The petition in the condemnation proceeding provides little guidance concerning the extent of the rights sought by the City beyond the description of the land being taken, except as such as might be inferred from the use to which the land would be put. As set forth above, the petition sought in the barest terms to acquire fee title to the tract, described by metes and bounds, for the location of the lift station and force main. The Commissioners’ report merely fixes the award at a dollar amount without specifying the damages contemplated. This is the only documentary evidence in the record bearing on the issue of res judicata, and it cannot fairly be said that it is of such a nature as to conclusively prevent or estop plaintiffs from denying or contesting the claim of res judica-ta. The majority opinion concludes that the petition and “construction plan” provided the Owens with sufficient notice that the lift station would produce the vile stench and excessive noise of which they now complain. However, the “construction plan” referred to by the majority is not part of the record here and we know neither of its terms nor its conditions. By law we are confined to consideration of the record presented and it is manifest error to rely upon evidence not contained in the record. Williams v. Clean Coverall Supply Co., Inc., 613 S.W.2d 659, 664 (Mo.App.1981). We have properly before us only the original petition, the order of taking and the Commissioners’ report. Even if (contrary to the proper standard of review) the record is construed most favorably to defendants, it provides no basis for a determination that plaintiffs’ claim is barred as a matter of law by the doctrine of res judicata.
The City next contends that the value of the land actually taken was only $3,000, according to Mr. Owen’s testimony in the present proceeding, and urges that “any depreciation in land value caused by noises, odor and vibration ... would reasonably explain the Commissioners’ decision to allow $22,651 for the iy2-acre parcel.” While arguably the Commissioners may have considered the possibility of some odor and offensive noise, the likelihood that this would occur was reduced and minimized by a City employee who testified before the Commission that there would be no noise and no smell. See Note 2, supra. For us to blandly assert the extent to which such possibility might have been or was in fact considered by the Commissioners calls for speculation and guesswork in which we may not indulge. Putting aside for the moment the proper standard of review, an overly charitable construction of the award and consideration of inferences favorable to the City indicates only that the award may have contemplated some damage from noise and smell, but it cannot be said as a matter of law that the award included compensation for the unusually vile stench and excessive noise which eventuated.
Turning now to the closely related question of whether the Owens might have recovered in the condemnation action the damages they later sought in the permanent nuisance claim, I agree that if the damages for which the Owens now claim compensation were reasonably anticipated at the time of the original taking of their property for the lift station, they were obliged to seek them at that time and may not recover in the present proceeding. Lemon v. Garden of Eden Drainage District, 310 Mo. 171, 182, 275 S.W. 44, 47-48 (1925); Lynch v. St. Louis, K.C. & C. Ry. Co., 180 Mo.App. 169, 168 S.W. 224-25 (1914); 27 Am.Jur.2d Eminent Domain Sec. 450 (1966). At that point all damages for value of property actually taken, as well as severance damages, i.e., consequential damages to plaintiffs’ remaining property, are to be fixed as best they can be, State ex rel. State Highway Commission v. Galeener, 402 S.W.2d 336, 340 (Mo.1966), first by the Commissioners and next, upon the exceptions either of the landowner or *24of the condemnor, by the jury. The Owens could have recovered damages for the noise and stench in the condemnation proceedings if such damages were reasonably anticipated at the time, but not if they were merely possible, remote or speculative. Land Clearance for Redevelopment Corp. v., Doernhoefer, 389 S.W.2d 780, 786 (Mo.1965); KAMO Electric Cooperative, Inc. v. Baker, 365 Mo. 814, 287 S.W.2d 858, 862 (1956).
I believe it cannot be said, from a fair evaluation of the evidence supportive of the verdict and the trial court’s ruling, that as a matter of law the unusual degree of stench and noise shown by the evidence in this case could have been reasonably anticipated at the time of the taking under the City’s condemnation petition. The evidence in the present case on the antecedent probability of noise and stench from the operation of the lift station, although sparse, was telling. Mr. Owen testified, “[t]here wasn’t to be no smell and no racket.” He further stated that a representative of the City had testified before the Commissioners that there would be no smell and no noise. This affirmative evidence was for the jury to consider and indicates that in the condemnation proceeding it was made clear to these landowners and the Commissioners by those involved on behalf of the City that there would be no stench or “racket.” This testimony alone was sufficient to make a submissible case. Moreover, the City made admissions through a key employee which indicated that the degree of noise and stench in this case could not have been reasonably anticipated at the time of the condemnation proceedings. Maintenance man John Phelan, Jr., who is involved in the operation of 20 lift stations for the City, testifying in the City’s case in chief, was asked whether he had “ever been around sewage at a lift station that didn’t have at least some smell.” Phelan answered: “You’ve gotta be kidding. It stinks.” Then this principal witness for the City admitted, “I’m gonna tell you that I think Mr. Owen’s lift station, next door to him, stinks worse than any one we got with the exception of one other that pumps chemicals.” (Emphasis added.) Phelan’s concession is noteworthy because it indicates that although he believes some smell is an unavoidable consequence of sewer plant operations, the lift station in question “stinks worse” than typical plants. This testimony, too, made the issue of what damages could be reasonably anticipated at the time of taking in early 1978 a question of fact for the jury, and this Court may not say that as a matter of law the unusually noxious stench and noise which occurred many years later were necessarily to be anticipated at the time of the original taking.
The City then takes the slightly different position, seemingly adopted by the majority, that because the odor and noise became apparent while the condemnation action was pending on the Owens’ exceptions, they were obliged to seek their damages in the condemnation action, and having failed to do so they are now precluded from seeking them in this separate action for damages. The condemnation suit, however, determined the trespass on the day of taking. Those damages, as noted above, could not have included an unanticipated level of stench and excessive noise. The before- and-after value of the Owens’ property was determined by the Commissioners four years prior to their claim seeking compensation for the extraordinary stench and noise which only arose after the facility went into operation. See Newman v. City of El Dorado Springs, 292 S.W.2d 314, 319, (Mo.App.1956); Person v. City of Independence, 114 S.W.2d 175, 179 (Mo.App.1938).
In sum, because the plea of res judicata was not determinable from an inspection of the record alone it was not a question of law for the court. Instead, application of the doctrine here required extrinsic evidence and it became a question of fact for the jury. The Owens made a submissible case; and the City as a matter of trial strategy elected not to submit its affirmative defense to the jury. The issue was thereby waived and cannot be resurrected as the majority has blithely done. I believe the trial court properly denied the City’s *25motion for judgment notwithstanding the verdict.3
I would affirm.
. Although Homeowners claim is styled an action for "permanent nuisance” it is in the nature of and treated here as a claim for inverse condemnation. When a public body or corporation having the power of eminent domain commits an act or creates a permanent nuisance affecting land, the cause of action for damages to the land is determined by the law of eminent domain and a suit for such damages is by the demand for permanent damage converted to an action in the nature of condemnation.
. At the outset, the City would have us believe the stench and noise are not excessive, and it goes without saying that was the position it adopted when making its presentation to the condemnation petitioners. Mr. Owen stated that a City employee had testified to the Commissioners that there would be no noise and no smell. The City obviously wanted the Commissioners to believe that assertion or conclude that any noise and stench would be minimal. While it may be conceded that the Commissioners’ award perhaps included an amount for smell and noise, it cannot be said as a matter of law that the award contemplated the enormity of the noxious result later created near the Owens’ home.
. On appeal the City raises other claims of trial error which were fully considered and found to be without merit by the Court of Appeals. My examination of those claims indicates they were properly denied and provide no basis for reversal.