260 U.S. 393
Argued Nov. 14, 1922.
Decided Dec. 11, 1922.
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.
Geo. Ross Hull, of Harrisburg, Pa., for State of Pennsylvania, as amicus
Mr. Justice HOLMES delivered the opinion of the Court.
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.
statute forbids the mining of anthracite coal in such way as to cause the
subsidence of, among other 413
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.
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.
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, 19 N. E. 390, 2 L. R. A.
81, 12 Am. St. Rep. 560. 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 414 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.
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.
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, 100 Atl. 820, L. R. A. 1917E, 672. 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
415 we think that we are warranted in assuming that the statute does.
is true that in Plymouth Coal Co. v. Pennsylvania, 232 U. S. 531, 34 Sup.
Ct. 359, 58 L. Ed. 713, 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 various laws.
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, 28 Sup. Ct. 331, 52 L. Ed. 637, 13 Ann. Cas. 1008.
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
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, 416 whether they do not stand as much upon tradition as upon
principle. Bowditch v. Boston, 101 U. S. 16, 25 L. Ed. 980. 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, 52 N. E. 747, 43 L. R. A. 832, 70 Am.
St. Rep. 298. 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, 41 Sup. Ct. 458, 65 L.
Ed. 865, 16 A. L. R. 165; Marcus Brown Holding Co. v. Feldman, 256 U. S.
170, 41 Sup. Ct. 465, 65 L. Ed. 877; Levy Leasing Co. v. Siegel, 258 U. S.
242, 42 Sup. Ct. 289, 66 L. Ed. 595, March 20, 1922.
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
Justice BRANDEIS dissenting.
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 * * * 417
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, §
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 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?
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
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
418 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,
29 Sup. Ct. 567, 53 L. Ed. 923. Compare Lindsley v. Natural Carbonic Gas
Co., 220 U. S. 61, 31 Sup. Ct. 337, 55 L. Ed. 369, Ann. Cas. 1912C, 160;
Walls v. Midland Carbon Co., 254 U. S. 300, 41 Sup. Ct. 118, 65 L. Ed.
276. 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, 8 Sup. Ct. 273,
31 L. Ed. 205; Powell v. Pennsylvania, 127 U. S. 678, 682, 8 Sup. Ct. 992,
1257, 32 L. Ed. 253. See also Hadacheck v. Los Angeles, 239 U. S. 394, 36
Sup. Ct. 143, 60 L. Ed. 348, Ann. Cas. 1917B, 927; Pierce Oil Corporation
v. City of Hope, 248 U. S. 498, 39 Sup. Ct. 172, 63 L. Ed. 381. 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, 30
Sup. Ct. 301, 54 L. Ed. 515; Missouri Pacific Railway Co. v. Omaha, 235 U.
S. 121, 35 Sup. Ct. 82, 59 L. Ed. 157. 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
*419 like dangers? In the latter case, as in the former, carrying on
the business would be a public nuisance.
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, 8 Sup. Ct. 992, 1257,
32 L. Ed. 253; Murphy v. California, 225 U. S. 623, 629, 32 Sup. Ct. 697,
56 L. Ed. 1229, 41 L. R. A. (N. S.) 153. 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
420 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, 35 Sup. Ct. 511, 59 L. Ed. 900; Pierce Oil
Corporation v. City of Hope, 248 U. S. 498, 500, 39 Sup. Ct. 172, 63 L.
Ed. 381. 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.
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, 106, 29 Sup. Ct. 567, 53 L. Ed. 923; Laurel Hill Cemetery v. San
Francisco, 216 U. S. 358, 365, 30 Sup. Ct. 301, 54 L. Ed. 515; Patsone v.
Pennsylvania, 232 U. S. 138, 144, 34 Sup. Ct. 281, 58 L. Ed. 539. 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, 24 L. Ed. 1036; Atlantic Coast
Line R. R. Co. v. North Carolina, 232 U. S. 548, 34 Sup. Ct. 364, 58 L.
Ed. 721; Union Dry Goods Co. v. Georgia Public Service Corporation, 248 U.
S. 372, 39 Sup. Ct. 117, 63 L. Ed. 309, 9 A. L. R. 1420; St. Louis Poster
Advertising Co. v. St. Louis, 249 U. S. 269, 39 Sup. Ct. 274, 63 L. Ed.
599. 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, 18 Sup. Ct. 513, 42 L. Ed.
948); 421 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,
31 Sup. Ct. 534, 55 L. Ed. 789. Compare Boyd v. Alabama, 94 U. S. 645, 24
L. Ed. 302; Stone v. Mississippi, 101 U. S. 814, 25 L. Ed. 1079; Butchers'
Union Co. v. Crescent City Co., 111 U. S. 746, 4 Sup. Ct. 652, 28 L. Ed.
585; Douglas v. Kentucky, 168 U. S. 488, 18 Sup. Ct. 199, 42 L. Ed. 553;
Pennsylvania Hospital v. Philadelphia, 245 U. S. 20, 23, 38 Sup. Ct. 35,
62 L. Ed. 124. 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, 28 Sup. Ct. 529, 52 L. Ed. 828, 14 Ann. Cas. 560;
Knoxville Water Co. v. Knoxville, 189 U. S. 434, 438, 23 Sup. Ct. 531, 47
L. Ed. 887; Rast v. Van Deman & Lewis Co., 240 U. S. 342, 36 Sup. Ct.
370, 60 L. Ed. 679, L. R. A. 1917A, 421, Ann. Cas. 1917B, 455. 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.
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
(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 stations.
Any street, road, bridge, or other public passageway, dedicated to public
use or habitually used by the public.
422 (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 1.
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, 5 Sup. Ct. 1086, 29 L. Ed.
229; Fallbrook Irrigation District v. Bradley, 164 U. S. 112, 17 Sup. Ct.
56, 41 L. Ed. 369); or upon adjoining owners, as by party wall provisions
(Jackman v. Rosenbaum Co., 260 U. S. 22, 43 Sup. Ct. 9, 67 L. Ed. 107,
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 in 248 U. S. 498, 39 Sup. Ct. 172, 63
L. Ed. 381; his brickyard, in 239 U. S. 394, 36 Sup. Ct. 143, 60 L. Ed.
348, Ann. Cas, 1917B, 927; his livery stable, in 237 U. S. 171, 35 Sup.
Ct. 511, 59 L. Ed. 900; his billiard hall, in 225 U. S. 623, 32 Sup. Ct.
697, 56 L. Ed. 1229, 41 L. R. A. (N. S.) 153; his oleomargarine factory,
in 127 U. S. 678, 8 Sup. Ct. 992, 1257, 32 L. Ed. 253; his brewery, in 123
U. S. 623, 8 Sup. Ct. 273, 31 L. Ed. 205; 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.