Opinion by
Mr. Justice Fell,The assignments of error present two questions. One relates to the admission of testimony offered by the defendant to show that the materials taken by it from the plaintiff's land had no market value, and the other to the instruction fcj Lie court that there could be no recovery by the plaintiff without proof of actual loss.
*454The plaintiff is the owner of coal lands on which from 1868 to 1876 mining óperations were conducted by its lessees. Quantities of culm from the breakers were deposited at the side of the bluff near the defendant’s road. In 1886, according to the plaintiff’s contention, and iu 1882 and 1883, according to the defendant’s, a considerable quantity of the culm was removed by the defendant and used by it for ballast, filling, excavations and in constructing embankments. Under the provisions of special acts incorporating the Pennsylvania Coal Company and the Lackawanna and Bloomsburg Railroad Company, which were merged with the corporation defendant, the plaintiff in 1892 filed a petition in the common pleas for the appointment of a jury “ to view the premises, estimate and determine the quantity, quality and value of the materials so taken as aforesaid, and to estimate and determine, as provided by law, whether, and, if any, what, damages have been or may be sustained,” etc. The plaintiff appealed from the finding of the jury, and on the trial in the common pleas of the issue thus arising the defendant claimed that the culm at the time it was taken had no market value. In support of this claim it offered testimony to prove that in the same general locality from 1882 to 1886 culm was used generally for the purpose of grading streets and railroads, and for other like purposes, and that the owners of culm piles gave the material away, and were glad to get rid of it without expense to themselves.
The rulings of the learned judge on the admission of this testimony were in entire harmony with the well established rule for determining the measure of damages where property is taken under the right of eminent domain. No land was taken, and there was no injury to the land by reason of the removal of the piles of refuse. The only thing taken that had a possible value was the coal in the culm piles, and the plaintiff’s case rested on proofs of the amount and value of the coal. The inquiry was then narrowed to the market value of the culm piles at the time they were taken. That culm was used for the same purposes as stone, sand and clay, and was given away by the owners with a desire to get rid of it, was illustrative and confirmatory of the assertion that it had no market value. A single instance, it is true, would not be enough, as a particular sale of land is not evidence of the market value of other land in the same *455vicinity, as it may have been compelled by necessity or lmve been the result of caprice or folly: P. & W. R. R. Co. v. Patterson, 107 Pa. 461. Culm piles at that time were not sold; they were not retained by the owners with a view to a prospective value. Evidence that they were generally used for the commonest purposes, for which other materials could have been had without cost, and that they were freely given away, went directly to their market value.
In an action of trespass for taking its property the plaintiff would have been entitled to recover nominal damages without proof of actual loss. But this was a statutory proceeding to determine “ whether, and, if any, what damages, had been sustained.” The entry was under the right of eminent domain. The culm was taken with the full knowledge and passive assent, if not with the actual permission of the plaintiff, who acquiesced without objection in all that was done by the defendant. The whole proceeding was to recover damages based, not upon a wrongful invasion of the plaintiff’s rights, but upon an act of assembly which authorized the taking of the property, and made the defendant liable for the damage actually done. We therefore see no error in the instruction that the plaintiff was not entitled to a verdict without proof of actual loss.
The judgment is affirmed.