PENNSYLVANIA COAL COMPANY v. MAHON ET AL.
No. 549.
SUPREME COURT OF THE UNITED STATES
260 U.S. 393; 43 S. Ct. 158; 67 L. Ed. 322; 1922 U.S. LEXIS 2381; 28
A.L.R. 1321
Argued November 14, 1922.
December 11, 1922, Decided
PRIOR HISTORY: ERROR to a decree of the Supreme Court of Pennsylvania, for the
defendants in error, in their suit to enjoin the Coal Company from mining under their
property in such way as to remove supports and cause subsidence of the surface and of
their house.
SYLLABUS: 1. One consideration in deciding whether limitations on private property,
to be implied in favor of the police power, are exceeded, is the degree in which the
values incident to the property are diminished by the regulation in question; and this is
to be determined from the facts of the particular case.
2. The general rule, at least, is that if regulation goes too far it will be recognized as
a taking for which compensation must be paid.
3. The rights of the public in a street, purchased or laid out by eminent domain, are
those that it has paid for.
4. Where the owner of land containing coal deposits had deeded the surface with express
reservation of the right to remove all the coal beneath, the grantees assuming the risk
and waiving all claim to damages that might arise from such mining, and the property
rights thus reserved, and contracts made, were valid under the state law, and a statute,
enacted later, forbade mining in such way as to cause subsidence of any human habitation,
or public street or building, etc., and thereby made commercially impracticable the
removal of very valuable coal deposits still standing unmined, held, that the prohibition
exceeded the police power, whether viewed as a protection to private surface owners or to
cities having only surface rights, and contravened the rights of the coal-owner under the
Contract Clause of the Constitution and the Due Process Clause of the Fourteenth
Amendment.
OPINION: 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, 95, 103. 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. St. 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 be 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 various laws.
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 Amendment. 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 taking. 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 R.R. 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 went to the verge of the law but fell far short of the present ct. Block v.
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.
Decree reversed.
DISSENT: 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." 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 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 threatened 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 can not, 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 oleomargarine cases settled that. Mugler v. Kansas, 123
U.S. 623, 668, 669; Powell v. Pennsylvania, 127 U.S. 678, 682.... 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.... If by mining anthracite
coal the owner would necessarily unloose poisonous gasses, 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 one hundred 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.... 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.... 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 conditions.
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.... May we say that notice would
afford adequate protection of the public safety where the legislature and the highest
court of the State, which greater knowledge of local conditions, have declared, in effect,
that it would not? If public safety is imperiled, surely neither grant, nor contract, can
prevail against the exercise of the police power.... 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;... 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.... 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...." 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 house. 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 being limited to, churches, schools,
hospitals, theatres, hotels, and railroad stations.
(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 Company Law.
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, ... or upon adjoining owners, as by
party wall provisions.... 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 in 248 U.S. 498; his brickyard,
in 239 U.S. 394; his livery stable, in 237 U.S. 171; his billiard hall, in 225 U.S. 623;
his oleomargarine factory, in 127 U.S. 678; his brewery, in 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.