The opinion of the court was delivered,.
by Agnew, J.There was no error in the court, charging that the mined coal was personal property, passing under the assignment for the benefit of creditors, and subject to be removed by the assignee; qualified as the instruction was that this could be done without essentially injuring the mines. The very purpose of the lease, expressed in terms, was to enable the Franklin Company to mine, carry away, and dispose of the coal. The separation of the coal lying in the runs from the mass of coal in place, was the result of a large expenditure of money and labor in the preparation for mining, and also in the mining of it. It was no longer a part of the coal in place, but lay in the breasts ready for transportation. It would be unjust if, after the tenant had done all this, the mined coal were still to be treated as á part of the realty; except so'far as it would be necessary to carry out the covenants in the lease. If the coal could not be removed without material injury to the lessor, we would .have to assume that the tenant’s right of property was not complete arid final, because of the covenant (in this instance expressed) to manage and conduct the mines and the mining of coal in the most approved method of modern mining; and to leave the mines in good order and condition at any termination of the lease. On the question of proper mining much evidence was given and different opinions expressed. The court *239fairly submitted to the jury the question of fact, whether the mined coal could be removed without material detriment to the mines.
It does not appear that the judge misstated the testimony of Edward Savage, in charging on the question of conversion. It is true Savage says he preferred mining the coal for himself to taking the coal there for nothing. In his opinion the coal in the runs could not be prepared for market without injuring the reputation of the mines. But on the point of sale by the defendants of the mined coal, which was the material one in regard to the conversion, he does say first in chief (p. 35) he had the right to remove it; and then in cross-examination, that the company gave us permission to take all there, solid and mined coal, — that is my construction of our contract. They did not object to our taking what we took, — twenty-seven loads, — we were to have all the mined coal there.
The conversion being established — and the jury have found this fact on evidence sufficient to be submitted to them — trover was the proper form of action. The coal being found to be the property of the plaintiff upon sufficient evidence and proper instructions, and the conversion by the. defendants and their refusal to permit the assignee to carry it away, the right of action in this form is complete.
In allowing the jury to find for the plaintiff the actual value of the coal as it lay in the breasts, and not the cost of mining, assimilating it to the value of coal-leave, as it is known, the court did the defendants no injustice. This was clearly the lowest form in the expression' of value that could be given to it. It gave the defendants all the advantage of the mined coal without the 'expense and labor of superintending its mining. The right to a deduction from this value, of rent unpaid, cannot be conceded in this form of action. There is a plain distinction in measuring damages between property rightfully acquired, and that taken wrongfully. The latter was the case in Herdic v. Young, 5 P. F. Smith 178, cited in the argument. The doctrine held there was that in the case of an inadvertent trespass, where no damages ought to be allowed beyond compensation for any outrage in the taking, it would not be just that the owner should be allowed the value added to the article by the labor and expense of the trespasser, beyond a proper compensation for the value of the thing when the trespass was committed. There just compensation required a reduction from the superadded value, ’ so as to bring the damages nearer to the true standard of loss suffered by the plaintiff. But here there was no trespass inadvertent, or wilful, but a rightful reduction to the possession of the Franklin Company by virtue of the lease, as its own property. There was no wrong in the taking to be compensated for, and no right of reduction in the value growing out of the state *240of the property itself. The rent which the defendants asked to be used in the reduction of the value of the coal was an independent demand wholly disconnected from the taking of the coal. Its deduction would be on the principle of a simple set-off, and not an equitable defalcation from the gross value. Such a set-off cannot be made in trover.
We think the court charged correctly also as to the right to use the railroad in the mines to remove the coal, qualified by the instruction that the use should be such as not to interrupt the defendants in the use of the mine. To have held otherwise would be simply to say that the mined coal could be used by no one. It being the property of the plaintiff the defendants would be liable if they converted it, and if the plaintiff entered to take it, he would be a trespasser. This would be unreasonable and inconsistent with the purpose and terms of the lease. Lex non patitur dbsurdum. The coal being lawfully mined the lessees had a right to remove it by the terms of the lease, and through the means and appliances sanctioned by its terms. The lease did not expire by efflux of time, so as to warn the lessees not to leave their work unfinished. If the defendants regained possession of the mines rightfully, a fact not clearly appearing in the evidence, yet a reasonable construction must be placed upon such a right of entry, that it should not be used as a penalty to forfeit all rights acquired before the entry. The property in the mined coal having already vested under the lease, the means of taking it away provided in the lease, which gave the possession and use of the mines and all their fixtures, machinery and appliances, must be construed to remain a sufficient reasonable time to enable the lessees to remove their property. The means reserved by the lessors in this lease to recover possession on the breach of certain covenants, are exceedingly sharp, stringent and speedy. They are not to be permitted to be used to destroy all the lessee’s rights of property, disconnected as they may be with the particular breach which was enforced by re-entry. This is not a case of option, where the removal could be effected by other means. The railroad is the only available means of ingress and egress to remove the coal, and necessity requires its use. Neeessitas facit licitum quod alias non est lieitum. Neeessitas quod eogit defendit. An equitable and reasonable interpretation must therefore be given to the terms of the lease. Lex aliquando sequitur cequitatem.
Judgment affirmed.