184 Va. 534, 39 S.E.2d 231 (1946)
Estil Ball owns approximately 100 acres of land in Russell County, Virginia, which formed part of a larger 265-acre tract previously owned by Reuben Sparks.1
On November 19, 1887, Sparks and his wife conveyed the coal and mineral rights in the 265-acre tract to Joseph I. Doran and William A. Dick, including language granting an easement to pass through the land by railway or otherwise to reach other lands owned by Doran and Dick for the purpose of mining and removing coal.2
Doran and Dick originally owned about 3,000 acres of land in Russell and Tazewell counties containing an estimated nine million tons of coal.3 Through mesne conveyances, the Raven Red Ash Coal Company became the lessee of the coal and mineral rights on these 3,000 acres.4 Approximately twenty-five years before the suit, the company constructed a tramway across the 100 acres now owned by Ball, extending roughly 2,800 feet, pursuant to the easement obtained from Sparks.5
The Raven Red Ash Coal Company also acquired coal rights on five additional small tracts not part of the original Doran and Dick holdings, including parcels owned by S. T. Newberry, Henry Bird, Ronda Blankenship, Will Bird, and W. P. Dixon.6 Over the five years preceding the action, the company transported 49,016 tons of coal mined from these five tracts across the tramway on Ball's land, in addition to 950,000 tons from the original tracts.7 Approximately 180,000 tons of coal remained to be mined from the additional tracts.8
Ball filed a notice of motion against the Raven Red Ash Coal Company seeking $5,000 for the use and occupation of the easement across his land for transporting the coal from the additional tracts.9 At trial in the Circuit Court of Russell County before Judge E. T. Carter, Ball proved ownership, the limited easement, and the unauthorized use but offered no evidence of physical damage to the property.10 The company's general manager testified on cross-examination that the prevailing rate for a right of way to transport coal across another's land was one cent per ton.11 The jury returned a verdict for $500 in Ball's favor, upon which the trial court entered judgment.12
The company obtained a writ of error from the Supreme Court of Virginia to review the judgment.13
Whether the facts entitle the plaintiff to maintain an action of trespass on the case in assumpsit?14
In the absence of a contractual relationship, the general rule is that where one person derives a benefit from the commission of a tort against the property of another, the law will, at the election of the person injured, imply a contract on the part of the tort-feasor to pay to the person injured a just remuneration for the damages sustained as a consequence of the wrong, and on this contract implied by law general assumpsit lies.15
Yes. The Raven Red Ash Coal Company derived a benefit from the illegal use of the easement.16 Defendant had no moral or legal right to enrich itself by the illegal use of plaintiff's property.17 Natural justice plainly requires the law to imply a promise to pay a fair value of the benefits received.18
The facts entitle plaintiff to maintain an action of trespass on the case in assumpsit.19
What test should be applied to determine the amount of damages to be allowed?20
In determining whether an action of assumpsit will lie for torts to real property, the test is whether the wrongdoer derived any benefit from the wrong done by him. It is not whether the value of the owner's property is diminished thereby.21
Yes. The jury were instructed that they should fix the amount of damages, if any, at such as would fairly compensate plaintiff for the use and occupation of the strip of land in the hauling and transportation of the coal over the same.22 The jury returned a verdict allowing the plaintiff one cent per ton.23 While the evidence on the value of the benefits retained by defendant was not as clear and full as it could have been, the jury had all the facts and circumstances before it.
The jury evidently concluded that the value of the benefit to the defendant for the illegal use of the easement should be computed at one cent per ton.24
The value of the benefit to the defendant is the proper test for determining the amount of damages to be allowed.25