The opinion o-f the court was delivered, by
Williams, J.— The construction which the court gave to the agreement of the 7th of April 1846, by its qualified refusal to charge as requested in the defendant’s third ¡joint, was in accordance with the evident intention of the parties. It is clear that the use of the railroad, and of the other property specified in the agreement, was granted to the vendees of the coal, under whom the defendant claimed the right to their use, for the sole purpose of enabling them to dig and remove the coal purchased from the grantor. The defendant, therefore, had no right to use the property for the purpose of taking out other coal of which he was the owner. But if he had no such right, are the plaintiffs entitled to maintain an action of assumpsit for the use of the property for a purpose for which it was not granted ? Undoubtedly such use was illegal, and the plaintiffs are entitled to some remedy or redress for the wrong of which they complain. But is assumpsit for the use and occupation of the property for other purposes than taking out the coal sold by the agreement the appropriate remedy ? The action of assumpsit is founded on a contract, express or implied, and will not lie where the relation of landlord and tenant does not exist: 1 Chit. Pl. 107; Pott v. Lesher, 1 Yeates 576; Smith v. Stewart, 6 Johns. 46 ; Bancroft v. Wardwell, 13 Id. 489; Dudding v. Hill, 15 Ill. 61; McNair v. Schwartz, 16 Id. 24; Rogers v. Libbey, 35 Maine 200. Here the relation of landlord and tenant never existed between the parties. There was no promise to pay for the use of the property, and none can be inferred from the facts and circumstances established by the evidence. But if assumpsit will not lie, it does not follow that no action is maintainable for the wrongful use of the property. The plaintiffs’ interest in it is only in reversion, and for its misuse, as is well settled, case will lie and is the proper remedy: *1551 Chit. Pl. 132. It was ruled in Shroder v. Brenneman, 11 Harris 348, that a right of way along an alley appurtenant to a par-, ticular lot cannot lawfully he used as a mode of access to another lot to which it is not appurtenant; and case was held to he the appropriate remedy for such illegal use. This decision is directly in point. It shows that the plaintiffs are. entitled to redress for the wrongful use of the property in question, and that case is the proper remedy. The court below was, therefore, in error in instructing the jury that the plaintiffs might, if the evidence justified, recover in the present form of action. Nor was the error immaterial. It affected the measure of damages. If assumpsit would lie, then the measure of damages would be the value of the use of the property. But if case is the proper remedy, compensation for the injury occasioned by its wrongful use is the measure of the damages to which the plaintiffs are entitled; and it does not follow that one is the equivalent of the other. But a mistake in the form of action is no longer fatal. It is amendable under the Act of 10th May 1871, Pamph. L. 243, and therefore, in reversing the judgment we shall send the cause back for a new trial.
Judgment reversed, and a venire facias de novo awarded.