CONTINUING TORTS. Ordinarily the dam ages which., may be recovered for a • tort in clude only compensation for the injury suf fered to the time of suit, and the theory formerly acted upon was that each continu ance of a trespass or a nuisance was a fresh one for which a new action would lie ; 3 Bla. Com. 220; Vedder v. Vedder, 1 Den. (N. Y.) 257.. The only remedy applied in such cases is that exemplary damages will be given, if, after one verdict against him, any one has the hardihood to continue it ; 2 Selw. N. P. 1130. In cases, however, where the injury is of a nature to be permanent, it is held that entire damages may be recovered in one action ; Sedg. Meas. Dam. § 924 ; as where the trespass was the insertion of gird ers into a wall ; Ritter v. Sieger, 105 Pa. 400 ; or maintaining a brothel next to the plaintiff's dwelling-house ; Givens v. Van Studdiford, 72 Mo. 129.
The same principle is applied in actions for breach of contract by neglect of a con tinuing duty imposed by it. Each moment the neglect continues is a separate breach and is often considered. and treated as a to tal breach for which the entire damage, past and prospective, may be recovered in one action, the judgment being a bar to any fur ther suit ; Hale, Dam. § 33 ; but not if the
contract be divisible, as was held, a contract to issue an annual pass renewable from year to year during the pleasure of the promisee ; Kansas & C. P. Ry. Co. v. Curry, 6 Kan. App. 561, 51 Pac. 576. Whether a tort is perma nent or not is a question of fact to be deter mined according to circumstances ; Sedg. Meas. Dam. § 924 ; the presumption being that a wrong will not continue ; Savannah & 0. Canal Co. v. Bourquin, 51 Ga. 378. Damages due to subsidence resulting from the working of a mine under another per son's property are measured by the market value of the property attributable to the risk of future subsidence ; [1906] 2 Ch. 22.
The question of the right to recover in one action of damage resulting from a con tinuing trespass, and to be protected by the judgment from further suit, is a very im portant one in connection with the exercise of the right of eminent domain under those modern constitutions which secure compen sation for property damaged as well as for that taken.