The question of whether a regulation is a valid exercise of the police
power or an unconstitutional taking depends on the particular facts. The
property being protected here is private property belonging to a single
citizen, in which there is no public nuisance if it is destroyed. The
law is not justified as a protection of personal safety. The contract
itself provided notice of the risks, and the grantee still contracted.
Since coal rights are worthless if the coal can not be mined, preventing
their mining is a taking because it is tantamount to destroying it. If
the police power of the states is allowed to abridge the contract rights
of parties, it will continue until private property disappears
completely. In general, while property may be regulated to a certain
extent, if regulation goes too far, it will be recognized as a taking.
The loss should not fall on the coal company who provided for this very
risk contractually. If the state wants more protection for its citizens,
it can pay for it.
Justice Brandeis' Dissent's Reasoning: A restriction imposed to protect
the public health, safety or morals from danger is not a taking. The
restriction here is merely the prohibition of a noxious use. Just
because a few private citizens are enriched does not make the law non-
public. If the mining were to set free noxious gas, there would be no
question that the state could prohibit it for the safety of the
citizens, without paying the miner.
UNITED STATES SUPREME COURT
PENNSYLVANIA COAL CO.
MAHON et al.
Argued Nov. 14, 1922. Decided Dec. 11, 1922.
[260 U.S. 393]
In Error to the Supreme Court of the State of Pennsylvania.
Suit by H. J. Mahon and another against the Pennsylvania Coal Company. A
judgment for defendant was reversed by the Supreme Court of Pennsylvania
(274 Pa. 489), and decree directed for plaintiffs, and defendant brings
Messrs. John W. Davis, of New York City, and H. S. Drinker, Jr., of
Philadelphia, Pa., for plaintiff in error.
Mr. W. L. Pace, of Pittston, Pa., for defendants in error.
Mr. Geo. Ross Hull, of Harrisburg, Pa., for State of Pennsylvania, as
Mr. Justice HOLMES delivered the opinion of the Court.
This is a bill in equity brought by the defendants in error to prevent
the Pennsylvania Coal Company from mining under their property in such
way as to remove the supports and cause a subsidence of the surface and
of their house.
The bill sets out a deed executed by the Coal Company in 1878, under
which the plaintiffs claim. The deed conveys the surface but in express
terms reserves the right to remove all the coal under the same and the
grantee takes the premises with the risk and waives all claim for
damages that may arise from mining out the coal. But the plaintiffs say
that whatever may have been the Coal Company's rights, they were taken
away by an Act of Pennsylvania, approved May 27, 1921 (P. L. 1198),
commonly known there as the Kohler Act. The Court of Common Pleas found
that if not restrained the defendant would cause the damage to prevent
which the bill was brought but denied an injunction, holding that the
statute if applied to this case would be unconstitutional. On appeal the
Supreme Court of the State agreed that the defendant had contract and
property rights protected by the Constitution of the United States, but
held that the statute was a legitimate exercise of the police power and
directed a decree for the plaintiffs, A writ of error was granted
bringing the case to this Court.
The statute forbids the mining of anthracite coal in such way as to
cause the subsidence of, among other things, any structure used as a
human habitation, with certain exceptions, including among them land
where the surface is owned by the owner of the underlying coal and is
distant more than one hundred and fifty feet from any improved property
belonging to any other person. As applied to this case the statute is
admitted to destroy previously existing rights of property and contract.
The question is whether the police power can be stretched so far.
Government hardly could go on if to some extent values incident to
property could not be diminished without paying for every such change in
the general law. As long recognized some values are enjoyed under an
implied limitation and must yield to the police power. But obviously the
implied limitation must have its limits or the contract and due process
clauses are gone. One fact for consideration in determining such limits
is the extent of the diminution. When it reaches a certain magnitude, in
most if not in all cases there must be an exercise of eminent domain and
compensation to sustain the act. So the question depends upon the
particular facts. The greatest weight is given to the judgment of the
legislature but it always is open to interested parties to contend that
the legislature has gone beyond its constitutional power.
This is the case of a single private house. No doubt there is a public
interest even in this, as there is in every purchase and sale and in all
that happens within the commonwealth. Some existing rights may be
modified even in such a case. Rideout v. Knox, 148 Mass. 368. But
usually in ordinary private affairs the public interest does not warrant
much of this kind of interference. A source of damage to such a house is
not a public nuisance even if similar damage is inflicted on others in
different places. The damage is not common or public. Wesson v.
Washburn Iron Co., 13 Allen (Mass.) 96, 103, 90 Am. Dec. 181. The extent
of the public interest is shown by the statute to be limited, since the
statute ordinarily does not apply to land when the surface is owned by
the owner of the coal. Furthermore, it is not justified as a protection
of personal safety. That could be provided for by notice. Indeed the
very foundation of this bill is that the defendant gave timely notice of
its intent to mine under the house. On the other hand the extent of the
taking is great. It purports to abolish what is recognized in
Pennsylvania as an estate in land--a very valuable estate--and what is
declared by the Court below to be a contract hitherto binding the
plaintiffs. If we were called upon to deal with the plaintiffs' position
alone we should think it clear that the statute does not disclose a
public interest sufficient to warrant so extensive a destruction of the
defendant's constitutionally protected rights.
But the case has been treated as one in which the general validity of
the act should be discussed. The Attorney General of the State, the City
of Scranton and the representatives of other extensive interests were
allowed to take part in the argument below and have submitted their
contentions here. It seems, therefore, to be our duty to go farther in
the statement of our opinion, in order that it may be known at once, and
that further suits should not be brought in vain.
It is our opinion that the act cannot be sustained as an exercise of the
police power, so far as it affects the mining of coal under streets or
cities in places where the right to mine such coal has been reserved. As
said in a Pennsylvania case, 'For practical purposes, the right to coal
consists in the right to mine it.' Commonwealth v. Clearview Coal Co.,
256 Pa. 328, 331. What makes the right to mine coal valuable is that it
can be exercised with profit. To make it commercially impracticable to
mine certain coal has very nearly the same effect for constitutional
purposes as appropriating or destroying it. This we think that we are
warranted in assuming that the statute does.
It is true that in Plymouth Coal Co. v. Pennsylvania,232 U. S. 531, it
was held competent for the legislature to require a pillar of coal to
the left along the line of adjoining property, that with the pillar on
the other side of the line would be a barrier sufficient for the safety
of the employees of either mine in case the other should be abandoned
and allowed to fill with water. But that was a requirement for the
safety of employees invited into the mine, and secured an average
reciprocity of advantage that has been recognized as a justification of
The rights of the public in a street purchased or laid out by eminent
domain are those that it has paid for. If in any case its
representatives have been so short sighted as to acquire only surface
rights without the right of support we see no more authority for
supplying the latter without compensation than there was for taking the
right of way in the first place and refusing to pay for it because the
public wanted it very much. The protection of private property in the
Fifth Amendment presupposes that it is wanted for public use, but
provides that it shall not be taken for such use without compensation. A
similar assumption is made in the decisions upon the Fourteenth
Hairston v. Danville & Western Ry. Co.,208 U. S. 598, 605. When this
seemingly absolute protection is found to be qualified by the police
power, the natural tendency of human nature is to extend the
qualification more and more until at last private property disappears.
But that cannot be accomplished in this way under the Constitution of
the United States.
The general rule at least is that while property may be regulated to a
certain extent, if regulation goes too far it will be recognized as a
It may be doubted how far exceptional cases, like the blowing up of a
house to stop a conflagration, go--and if they go beyond the general
rule, whether they do not stand as much upon tradition as upon
principle. Bowditch v. Boston,101 U. S. 16.
In general it is not plain that a man's misfortunes or necessities will
justify his shifting the damages to his neighbor's shoulders. Spade v.
Lynn & Boston Ry. Co., 172 Mass. 488, 489. We are in danger of
forgetting that a strong public desire to improve the public condition
is not enough to warrant achieving the desire by a shorter cut than the
constitutional way of paying for the change. As we already have said
this is a question of degree--and therefore cannot be disposed of by
general propositions. But we regard this as going beyond any of the
cases decided by this Court. The late decisions upon laws dealing with
the congestion of Washington and New York, caused by the war, dealt with
laws intended to meet a temporary emergency and providing for
compensation determined to be reasonable by an impartial board.
They were to the verge of the law but fell far short of the present act.
Block & Hirsh, 256 U. S. 135; Marcus Brown Holding Co. v. Feldman, 256
U. S. 170; Levy Leasing Co. v. Siegel, 258 U. S. 242.
We assume, of course, that the statute was passed upon the conviction
that an exigency existed that would warrant it, and we assume that an
exigency exists that would warrant the exercise of eminent domain. But
the question at bottom is upon whom the loss of the changes desired
should fall. So far as private persons or communities have seen fit to
take the risk of acquiring only surface rights, we cannot see that the
fact that their risk has become a danger warrants the giving to them
greater rights than they bought.
Mr. Justice BRANDEIS dissenting.
The Kohler Act prohibits, under certain conditions, the mining of
anthracite coal within the limits of a city in such a manner or to such
an extent 'as to cause the * * * subsidence of * * * any dwelling or
other structure used as a human habitation, or any factory, store, or
other industrial or mercantile establishment in which human labor is
employed.' Act Pa. May 27, 1921, s 1 (P. L. 1198). Coal in place is
land, and the right of the owner to use his land is not absolute. He may
not so use it as to create a public nuisance, and uses, once harmless,
may, owing to changed conditions, seriously threaten **161 the public
welfare. Whenever they do, the Legislature has power to prohibit such
uses without paying compensation; and the power to prohibit extends
alike to the manner, the character and the purpose of the use.
Are we justified in declaring that the Legislature of Pennsylvania has,
in restricting the right to mine anthracite, exercised this power so
arbitrarily as to violate the Fourteenth Amendment?
Every restriction upon the use of property imposed in the exercise of
the police power deprives the owner of some right theretofore enjoyed,
and is, in that sense, an abridgment by the state of rights in property
without making compensation. But restriction imposed to protect the
public health, safety or morals from dangers threatended is not a
taking. The restriction here in question is merely the prohibition of a
noxious use. The property so restricted remains in the possession of its
owner. The state does not appropriate it or make any use of it. The
state merely prevents the owner from making a use which interferes with
paramount rights of the public. Whenever the use prohibited ceases to be
noxious--as it may because of further change in local or social
conditions--the restriction will have to be removed and the owner will
again be free to enjoy his property as heretofore.
The restriction upon the use of this property cannot, of course, be
lawfully imposed, unless its purpose is to protect the public. But the
purpose of a restriction does not cease to be public, because
incidentally some private persons may thereby receive gratuitously
valuable special benefits.
Thus, owners of low buildings may obtain, through statutory restrictions
upon the height of neighboring structures, benefits equivalent to an
easement of light and air. Welch v. Swasey, 214 U. S. 91. Compare
Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61; Walls v. Midland
Carbon Co., 254 U. S. 300. Furthermore, a restriction, though imposed
for a public purpose, will not be lawful, unless the restriction is an
appropriate means to the public end. But to keep coal in place is surely
an appropriate means of preventing subsidence of the surface; and
ordinarily it is the only available means. Restriction upon use does not
become inappropriate as a means, merely because it deprives the owner of
the only use to which the property can then be profitably put. The
liquor and the oleomargine cases settled that. Mugler v. Kansas,123 U.
S. 623, 668, 669; Powell v. Pennsylvania,127 U. S. 678, 682. See also
Hadacheck v. Los Angeles, 239 U. S. 394; Pierce Oil Corporation v. City
of Hope, 248 U. S. 498. Nor is a restriction imposed through exercise of
the police power inappropriate as a means, merely because the same end
might be effected through exercise of the power of eminent domain, or
otherwise at public expense. Every restriction upon the height of
buildings might be secured through acquiring by eminent domain the right
of each owner to build above the limiting height; but it is settled that
the state need not resort to that power. Compare Laurel Hill Cemetery v.
San Francisco, 216 U. S. 358; Missouri Pacific Railway Co. v. Omaha, 235
U. S. 121.
If by mining anthracite coal the owner would necessarily unloose
poisonous gases, I suppose no one would doubt the power of the state to
prevent the mining, without buying his coal fields. And why may not the
state, likewise, without paying compensation, prohibit one from digging
so deep or excavating so near the surface, as to expose the community to
like dangers? In the latter case, as in the former, carrying on the
business would be a public nuisance.
It is said that one fact for consideration in determining whether the
limits of the police power have been exceeded is the extent of the
resulting diminution in value, and that here the restriction destroys
existing rights of property and contract. But values are relative. If we
are to consider the value of the coal kept in place by the restriction,
we should compare it with the value of all other parts of the land. That
is, with the value not of the coal alone, but with the value of the
whole property. The rights of an owner as against the public are not
increased by dividing the interests in his property into surface and
subsoil. The sum of the rights in the parts can not be greater than the
rights in the whole. The estate of an owner in land is grandiloquently
described as extending ab orco usque ad coelum. But I suppose no one
would contend that by selling his interest above 100 feet from the
surface he could prevent the state from limiting, by the police power,
the height of structures in a city. And why should a sale of underground
rights bar the state's power? For aught that appears the value of the
coal kept in place by the restriction may be negligible as compared with
the value of the whole property, or even as compared with that part of
it which is represented by the coal remaining in place and which may be
extracted despite the statute. Ordinarily a police regulation, general
in operation, will not be held void as to a particular property,
although proof is offered that owing to conditions peculiar to it the
restriction could not reasonably be applied. See Powell v. Pennsylvania,
127 U. S. 678, 681, 684; Murphy v. California,225 U. S. 623, 629.
But even if the particular facts are to govern, the statute should, in
my opinion be upheld in this case. For the defendant has failed to
adduce any evidence from which it appears that to restrict its mining
operations was an unreasonable exercise of the police power. Compare
Reinman v. Little Rock,237 U. S. 171, 177, 180; Pierce Oil Corporation
v. City of Hope,248 U. S. 498, 500. Where the surface and the coal
belong to the same person, self-interest would ordinarily prevent mining
to such an extent as to cause a subsidence. It was, doubtless, for this
reason that the Legislature, estimating the degrees of danger, deemed
statutory restriction unnecessary for the public safety under such
It is said that this is a case of a single dwelling house, that the
restriction upon mining abolishes a valuable estate hitherto secured by
a contract with the plaintiffs, and that the restriction upon mining
cannot be justified as a protection of personal safety, since that could
be provided for by notice. The propriety of deferring a good deal to
tribunals on the spot has been repeatedly recognized. Welch v. Swasey,
214 U. S. 91; Laurel Hill Cemetery v. San Francisco, 216 U. S. 358, 365;
Patsone v. Pennsylvania, 232 U. S. 138, 144. May we say that notice
would afford adequate protection of the public safety where the
Legislature and the highest court of the state, with greater knowledge
of local conditions, have declared, in effect, that it would not? If the
public safety is imperiled, surely neither grant, nor contract, can
prevail against the exercise of the police power. Fertilizing Co. v.
Hyde Park, 97 U. S. 659; Atlantic Coast Line R. R. Co. v. North
Carolina, 232 U. S. 548; Union Dry Goods Co. v. Georgia Public Service
Corporation, 248 U. S. 372; St. Louis Poster Advertising Co. v. St.
Louis, 249 U. S. 269.
The rule that the state's power to take appropriate measures to guard
the safety of all who may be within its jurisdiction may not be
bargained away was applied to compel carriers to establish grade
crossings at their own expense, despite contracts to the contrary,
Chicago, Burlington & Quincy R. R. Co. v. Nebraska, 170 U. S. 57; and,
likewise, to supersede, by an Employers' Liability Act, the provision of
a charter exempting a railroad from liability for death of employees,
since the civil liability was deemed a matter of public concern, and not
a mere private right. Texas & New Orleans R. R. Co. v. Miller, 221 U. S.
408. Compare Boyd v. Alabama, 94 U. S. 645; Stone v. Mississippi, 101 U.
S. 814; Butchers' Union Co. v. Crescent City Co.,111 U. S. 746; Douglas
v. Kentucky,168 U. S. 488; Pennsylvania Hospital v. Philadelphia, 245 U.
S. 20, 23.
Nor can existing contracts between private individuals preclude exercise
of the police power. 'One whose rights, such as they are, are subject to
state restriction cannot remove them from the power of the state by
making a contract about them.' Hudson Water Co. v. McCarter,209 U. S.
349, 357; Knoxville Water Co. v. Knoxville, 189 U. S. 434, 438; Rast v.
Van Deman & Lewis Co., 240 U. S. 342. The fact that this suit is brought
by a private person is, of course, immaterial. To protect the community
through invoking the aid, as litigant, of interested private citizens is
not a novelty in our law. That it may be done in Pennsylvania was
decided by its Supreme Court in this case. And it is for a state to say
how its public policy shall be enforced.
This case involves only mining which causes subsidence of a dwelling
But the Kohler Act contains provisions in addition to that quoted above;
and as to these, also, an opinion is expressed. These provisions deal
with mining under cities to such an extent as to cause subsidence of----
(a) Any public building or any structure customarily used by the public
as a place of resort, assemblage, or amusement, including, but not
limited to, churches, schools, hospitals, theaters, hotels, and railroad
(b) Any street, road, bridge, or other public passageway, dedicated to
public use or habitually used by the public.
(c) Any track, roadbed, right of way, pipe, conduit, wire, or other
facility, used in the service of the public by any municipal corporation
or public service company as defined by the Public Service Law, section
A prohibition of mining which causes subsidence of such structures and
facilities is obviously enacted for a public purpose; and it seems,
likewise, clear that mere notice of intention to mine would not in this
connection secure the public safety. Yet it is said that these
provisions of the act cannot be sustained as an exercise of the police
power where the right to mine such coal has been reserved. The
conclusion seems to rest upon the assumption that in order to justify
such exercise of the police power there must be 'an average reciprocity
of advantage' as between the owner of the property restricted and the
rest of the community; and that here such reciprocity is absent.
Reciprocity of advantage is an important consideration, and may even be
an essential, where the state's power is exercised for the purpose of
conferring benefits upon the property of a neighborhood, as in drainage
projects (Wurts v. Hoagland, 114 U. S. 606; Fallbrook Irrigation
District v. Bradley, 164 U. S. 112; or upon adjoining owners, as by
party wall provisions (Jackman v. Rosenbaum Co., 260 U. S. 22, decided
October 23, 1922). But where the police power is exercised, not to
confer benefits upon property owners but to protect the public from
detriment and danger, there is in my opinion, no room for considering
reciprocity of advantage. There was no reciprocal advantage to the owner
prohibited from using his oil tanks 248 U. S. 498; his brickyard, 239 U.
S. 394; his livery stable, 237 U. S. 171; his billiard hall, 225 U. S.
623; his oleomargarine factory, 127 U. S. 678; his brewery, 123 U. S.
623; unless it be the advantage of living and doing business in a
civilized community. That reciprocal advantage is given by the act to
the coal operators.
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