OPINION OF THE COURT.
MECHEM, J. 2 1 (After making the foregoing statement of fact). 1. The first question presented in this case is whether or not the plaintiff was entitled to recover for the coal' taken by the defendants* prior to April 11, 1905, the date of the deed to the land from the railroad company to the plaintiff. The position of counsel for the plaintiff with respect to this question is stated in his brief as follows: “All that is necessary to support a plaintiff’s action to recover damages as against a defendant who is a mere trespasser without any title or right, is the simple possession pf the property upon which the trespasses are committed.” The plaintiff did not allege or prove, nor did the court find, that it was injured as to its possessory rights, that is, by reason of a disturbance of its possession simply. The action is brought to recover for the -value of coal removed from the land, and if plaintiff is to recover the value of that coal, ,it must show some property right or interest in the coal which is not established by possession of the land merety. The reason of this is that coal- and minerals in place are land, (Caldwell v. Fulton, 31 Pa. St. 475; & 2 Am. Doc. 760) and their removal by a trespasser constitutes a permanent injury to the freehold, for which injury the, owner of the fee is alone entitled to recover. Hugunin v. McCunniff, 2 Colo. 367; 14 Mor. Min. Rep. 463; Starr v. Jackson, 11 Mass. 519; Wadleigh, v. Marathon County Bank, 17 N W. (Wis.) 314; Burkhalter v. Oliver, 88 Ga. 473; 14 S. E. 704.
3 4 2. The court found that plaintiff had, “in pursuance of an agreement or understanding with said railroad company, which does not appear to have been in writing except so far as embodied in correspondence between the parties, for the purchase by plaintiff of said south half of said section eleven, and with the knowledge and consent of the railroad company, entered upon said south half of said section eleven and began taking coal therefrom as early as the latter part of 1898.” According to this finding the construction most favorable to plaintiff, of which it is susceptible, the railroad company grainted nothing more than a license to the plaintiff to mine coal from the land and did not grant plaintiff any property in the coal until it had mined it. As long as the coal remained in place, it was the property of the railroad company. 27 Cyc. 690; Grubb v. Bayard, 11 Fed. Case No. 5849; Baker v. Hart, 12 L. R. A. (N. Y.) 60; Arnold v. Bennett, 92 Mo. App. 156; East Jersey Iron Co. v. Wright, 32 N. J. Eq. 248; Funk v. Haldman, 53 Pa. St. 229. The plaintiff could not recover damages on the theory that it had title to the coal. No doubt, as was said in Baker v. Hart, supra, the act of the defendants was an infringement of plaintiff's rights, for which it could recover damages, as it in fact sustained, hut it proved none.
5 6 3. Continuing the argument under this head, counsel for plaintiff saj's: “It is not to be tolerated that 'defendants, more wanton wrong-doers, can set up that the title was in the railroad company, and that, therefore, they were at liberty to take the coal, thus diminishing the value of the land which plaintiff had agreed to purchase and was occupying and using under that agreement.” If, as before stated, the title to the coal before the plaintiff received a deed from the railroad company was in the railroad companjg a right to action to recover for the same was also in the railroad companj' and such right did not pass by the deed. U. S. v. Laughren, 172 U. S. 206; Wadleigh v. Marathon County Bank, supra,; Burkhalter v. Oliver, supra; Chicago & Alton Ry. Co. v. Sarah Maher, 91 Ill. 312; Hagunin v. McCunniff, supra. It is clear that if the title to the coal converted by defendants was in the railroad company, a recovery by tlie^plaintiff would be no bar to an action by the real owner, the railroad company. The plaintiff knew, at the time that it received a deed from the railroad company, that defendants had removed great quantities of coal from the land, thus diminishing its value. It bought the lands so damaged and reduced in value with full knowledge of that condition. The defendants are not responsible for the purchase by plaintiff of the land. There is nothing in the findings of facts upon which it could be determined as a matter of law that the position of plaintiff with respect to its rights to the land before the delivery of the deed from the railroad company was other than a mere license. There is nothing to show any conveyance to it of any interest in the land or the coal by reason of its being permitted by the railroad to take-possession and mine. There is no evidence of any binding contract between the railroad company and plaintiff for the purchase of the property in existence prior to the discovery by plaintiff that defendants had taken coal from the land to the extent that the making and delivery of a conveyance would have been a mere formality to the passing of the title, so that the plaintiff being under a binding contract to buy the land whether or no, it was damaged by the acts of the defendants to the extent of the value of the coal removed. We do not understand the position of defendants to he that because the plaintiff did not have title they were at liberty to take coal from the land, but they contend that they are not liable to the plaintiff for the value of the coal, but, if at all, to the railroad company. And we believe this to be ,the correct view of the case. We, therefore, hold that the plaintiff is not entitled to recover the value of the coal mined by defendants prior to April 11, 1905, when plaintiff acquired title to the land.
7 4. The court found that defendants had wrongfully removed from plaintiff’s ground and converted to their own use, in all, 31,250.76 tons of coal, covering a period from sometime in August, 1904, to October 2, 1905, and that of this 0,932 tons were mined after June 26, 1905, and of the balance, the court found that it was impossible to ascertain from the evidence how much was taken between April 11, 1905, and June 26, 1905. From this, it is evident that the court erred in rendering judgment in favor of plaintiff on the basis of 28,789 tons, because, as we have shown, plaintiff has not established any right, title or interest in the coal mined prior to April 11, 1905, to entitle it to recover damages on the theory that it owned the coal, the only damages alleged or attempted to be established by it. And, as it was impossible for the court to state how much coal was extracted by defendants between April 11 and June 26, judgment should have been on the basis of 6,932 tons, that amount being definitely ascertained.
8 5. We have carefully examined the record in this case and find that there is substantial evidence to support the finding of the court that the plaintiff is entitled to recover the sum of 12%c. per ton, and no more, for the coal mined by defendants and converted to their own use after June 26, 1905. The judgment of the lower court is reversed and the cause remanded for further proceedings not inconsistent with this opinion.
OPINION ON MOTION FOR REHEARING.
MECHEM, J. The appellant, by a motion for rehearing, calls the court’s attention to certain matters contained in the record which, in counsel’s opinion, fill the requirements of the conclusion announced in the original opinion filed in this case, that' to entitle appellant to recover it was not sufficient that it establish possession under an agreement to' purchase, but that it must be shown that such agreement was binding upon it to buy the land so that the execution and delivery to it of a deed was a mere formality to the passing of the title. No mention was made in the brief of either party of such an agreement, the case being tried upon appellant’s theory that mere possession, if rightful, entitled it to recover. However, as the trial court made a finding that the appellant had possession under an agreement .and rendered judgment on the theory that possession by appellant under such agreement gave ii the right to recover for coal mined previous to the execution of the deed to it for the land, it would seem that if the record shows, as appellant now contends it does, that appellant was, at the time it took title from the railroad company, under a binding obligation to buy the land, so that it could not have refused to buy in view of the injuries committed by the appellees, then, in that event, the judgment was right anol should be sustained, if facts were before the court sufficient to sustain its judgment, they should be considered as having been the basis of the judgment notwithstanding the theories of counsel trying the case. The record shows that the appellant and the railroad compa^, in the year 1903, agreed to arbitrate the question whether or not there was an enforceable contract between them for the sale ly the railroad company and the purchase by the appellant of the south half of section eleven, the tract mentioned in the original opinion. The arbitrator to whom this question was submitted found, as to the contract of sale, that “the Caledonian Coal Company could have enforced that contract at any time after it was made, and, conversely the railroad company could have compelled the Caledonian Company to take and pay for the land.” The arbitrator ordered the performance of the contract which was performed by the execution of the deed of April 11, 1905. mentioned in the original opinion. This would seem to-put the matter at rest, but the appellees claim that as a matter of fact the appellant only paid for 217 acres of land out of- the south half of section eleven, that by an understanding between the railroad company and appellants it was agreed that the south line of section eleven was a crooked line so that between that line and what would have been the south line of section eleven had it been a square or typical section, there were 103 acres which the appellant did not pay for, and that the coal taken by appellees was mined in that area ,of 103 acres It also appears from the record that the appellant, at the time it entered the south half of section eleven, in 1898, was the owner in fee of the northern tier of forty acre subdivisions in section fourteen, which joins section eleven on tire south. That by mistake of the government surveyors, the east line of section fourteen, by monuments on the ground measured 5990 instead of 5280 feet and this excess diminished the area of section eleven to that extent. This line was the subject.of a discussion by 'his court’ in the case of Canavan v. Dugan, 10 N. M. 316, but did not involve sections eleven and fourteen, If the so-called crooked line was the dividing line between sections eleven and fourteen, then the appellant was the owner of the land from which the coal was taken, for the northern forty acre tract included it. . Tt seems that the court in the case of Canavan v. Dugan, having decided the crooked line was liot the correct line, the appellant brought suit against the railroad companjp in which it sought to foreclose the railroad company from claiming or exercising any right to the 103 acres of land above referred to. This action was included in the arbitration and by the arbitrator decided that, as between the appellant and the railroad company, the so-called crooked line was the dividing line between their lands. No question is made but that the award was conclusive as between the parties to it, so if the contention of appellees is correct the appellant was the actual owner of the land; if they are not correct, the appellant was under an enforceable and binding contract to buy it, so that it is entitled to recover for the value of the coal taken from the land by appellees. The court below found that appellees had mined and converted to their own use 28,789 tons of coal, for which appellant is entitled to recover on the basis of 12% cents per ton royalty. To this extent the former opinion of the court is modified and the judgment of the court below is accordingly affirmed.