PENNSYLVANIA COAL COMPANY v. MAHON ET AL
SUPREME COURT OF THE UNITED STATES
260 U.S. 393; 43 S. Ct. 158; 1922 U.S. LEXIS 2381; 67 L. Ed. 322; 28 A.L.R.
Argued November 14, 1922.
December 11, 1922, Decided
PRIOR HISTORY: [***1]
ERROR TO THE SUPREME COURT OF THE STATE OF PENNSYLVANIA.
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. P. 413.
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. P. 415.
3. The rights of the public in a street, purchased or laid out by eminent
domain, are those that it has paid for. P. 415.
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 [***2] 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. n1 P. 413.
n1 The following summary of the statute involved is taken from the opinion
of the Pennsylvania Supreme Court:
The statute is entitled: "An act regulating the mining of anthracite coal;
prescribing duties for certain municipal officers; and imposing penalties."
Section 1 provides that it shall be unlawful "so to conduct the operation
of mining anthracite coal as to cause the caving-in, collapse, or
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; (d) 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; (e) Any cemetery or public burial ground."
Sections 2 to 5, inclusive, place certain duties on public officials and
persons in charge of mining operations, to facilitate the accomplishment of
the purpose of the act.
Section 6 provides the act "shall not apply to [mines in] townships of the
second class [i.e., townships having a population of less than 300 persons
to a square mile], nor to any area wherein the surface overlying the mine
or mining operation is wild or unseated land, nor where such surface is
owned by the owner or operator of the underlying coal and is distant more
than one hundred and fifty feet from any improved property belonging to any
Section 7 sets forth penalties; and ß 8 reads: "The courts of common pleas
shall have power to award injunctions to restrain violations of this act."
P.L. 1921, p. 1198. [***3]
274 Pa. St. 489, reversed.
COUNSEL: Mr. John W. Davis with whom Mr. Frank W. Wheaton, Mr. Henry S.
Drinker, Jr., and Mr. Reese H. Harris were on the brief, for plaintiff in
I. The statute impairs the obligation of the contract between the parties.
On August 26, 1921, the Mahons were bound by a valid covenant to permit the
Coal Company, which had sold to them or to their ancestor the surface
rights only in their lot, to exercise without objection or hindrance by
them, its reserved right to mine out all the coal, without liability to
them for damages occasioned thereby, which damages had been expressly
waived as a condition for the grant. On August 27, 1921, the statute
completely annulled this covenant, by giving them the right, by injunction,
to prevent such mining. The fact that this contract was contained in a deed
of conveyance does not make it any the less a contract within the
constitutional protection. A deed is a contract between the parties
thereto, even though the grantor is a sovereign State. Fletcher v. Peck, 6
Cr. 87, 137; Ohio Trust Co. v. Debolt, 16 How. 416, 432.
II. The statute takes the property of the Coal Company without due process
Whenever [***4] the use of the land is restricted in any way or some
incorporeal hereditament is taken away which was appurtenant thereto, it
constitutes as much a taking as if the land itself had been appropriated.
Tiedeman, State and Federal Control of Real and Personal Property, p. 702,
ß 143; Pumpelly v. Green Bay Co., 13 Wall. 166; Commonwealth v. Clearview
Coal Co., 256 Pa. St. 238.
If an act would be unconstitutional which specifically required one-third
of the coal to be left in place to support the surface, it is in no way
saved by the subterfuge of permitting the mining, provided this does not
cause the subsidence which will inevitably result unless the Coal Company
provides artificial support at a cost exceeding the value of the coal. The
theoretical right to remove the coal without disturbing the surface is, as
a practical matter, no more available than was Shylock's right to his pound
As pointed out in Justice Kephart's dissenting opinion, the courts of
Pennsylvania have recognized three distinct estates in mining property: (1)
The right to use the surface; (2) the ownership of the subjacent minerals;
(3) the right to have the surface supported by the subjacent strata.
This third right, called the Thirds Estate, has been recognized as so
distinct from the ownership of the surface or of the minerals that it may
be transferred to and held or conveyed by one who was neither the owner of
the surface nor of the coal. Penman v. Jones, 256 Pa. St. 416; Charnetski
v. Coal Co., 270 Pa. St. 459; Young v. Thompson, 272 Pa. St. 360.
III. The statute is not a bona fide exercise of the police power.
With the swing of the popular pendulum during recent years, the descendants
of the able lawyers who, forty years ago, were employed to draft special
legislation, are now employed in drafting laws to evade the restrictions of
the state and federal constitutions. This legislation divides itself
generally into two classes. In the first class fall those laws which are
prompted by upright and public spirited progressives who, impelled by the
need for the immediate adoption of the reforms which they advocate, are
impatient at the constitutional restrictions on federal and state power,
and are unwilling to await the enlargement of such powers by constitutional
amendment. Examples of this class of law are the two recent Child Labor
The second class consists [***6] of laws passed at the insistence of a
determined and organized minority, designed to confiscate for their benefit
the rights of producers of property, and passed by a legislature in time of
political stress, in its anxiety to secure the votes controlled by the
advocates of the measure. Such a law, we submit, is the Kohler Act. To
protect a complaisant publicd from such laws is one of the primary
functions of the courts.
When it is asserted that a statute is not what the legislature sought to
have it appear, it is necessary for those attacking its constitutionality
to point, in the statute itself, to evidences which, viewed in the light of
the court's knowledge of human nature and of legislative practice, are
sufficient to demonstrate the position taken.
So tested, the Kohler Act is in reality what this Court in Loan Association
v. Topeka, 20 Wall. 655, characterized as "not legislation," but "robbery
under the forms of law."
It will be observed that the favored expedient of the draughtsmen of
legislation of either of the classes to which we have alluded, is to dress
up their statute in the garb of a statute properly coming within one of the
recognized powers of the legislative [***7] body enacting it.
The Kohler Act speaks as a regulation of the mining of anthracite coal, to
protect the lives and safety of the public. It begins with a vivid
preamble, from which it would appear that a considerable part of the
population of Pennsylvania is in immediate danger of the loss of life and
limb by being incontinently projected into unexpected abysses formed by the
sudden subsidence of the surface by reason of the mining of anthracite
coal. In his dissenting opinion, however, Mr. Justice Kephart states that
the actual damage to date is confined to a small portion of the City of
Scranton. Anthracite mining, however, is conducted in nine counties under a
surface area comprising 496 square miles. While this preamble may possibly
be regarded as spontaneous expression by the legislature of the reasons for
the passage of the act, we call attention to the fact that an honest and
valid law needs no specious preamble to bolster up its constitutionality.Is
it not an equally plausible explanation of the preamble that the framers of
this act knew full well that it was not really a police regulation and were
seeking to coerce the courts into holding it to be such merely by affixing
[***8] to it a label?
The act also contains a clause emphasizing that it is remedial legislation
and craving a broad construction, which, if the act is what it says it is,
will not help it, but which, if it is really a confiscatory measure
masquerading as a police regulation, merely serves to emphasize this
feature. The preamble and ß 9 are the land of Esau. Section 1 is the voice
of Jacob. Dobbins v. Los Angeles, 195 U.S. 223; Lawton v. Steele, 152 U.S.
Does the interest of the public generally, as distinguished from the
private interest of Mr. and Mrs. Mahon, require that they shall be under no
necessity of removing temporarily from their dwelling while the mining
under their lot is going on, or of themselves making the necessary
expenditures to repair their house and to fill up the cracks in their
sidewalk and lawn after the subsidence is completed, using that part of the
purchase money which they saved by buying the lot wighout the right of
Are the drastic prohibitions of ß 1 reasonably necessary to protect the
lives and safety of persons on the Mahon lot or are they unduly oppressive
on the Coal Company?
The act shows on its face that its purpose is not to [***9] protect the
lives or safety of the public generally but merely to augment the property
rights of a favored few.
Genuine public streets or public property where the right of support is
vested in the public, as well as private property, where such support has
not been sold, have been amply protected. Under the Mine Law of 1891 (3
Purd. 2555), the Davis Act (Act of July 26, 1913, P.L. 1439; 6 Purd. 6626)
maps of underground workings, both past and prospective, must be filed with
State Inspectors and City and Borough Mine Bureaus. Any citizen can at any
time determine whether his underlying support is jeopardized. Actual
inspection is always available and injunctions easily obtainable. See
Scranton v. Peoples Coal Co., 256 Pa. St. 332; 274 Pa. St. 63. All this was
true before the Kohler Act.
The only interests not heretofore fully protected both by the right to
damages and to injunctive relief, were those individuals who were owners of
surface rights merely, and whose right of subjacent support had been
withheld or waived, presumably for adequate consideration, or public or
quasi-public bodies who, instead of condemning their streets or school
buildings and thus paying for and [***10] securing the permanent support
of the underlying coal, have obtained them at a bargain from parties who
acquired only restricted title such as the Mahons possess. The right of
such surface owners, the courts of Pennsylvania have properly held, can
rise no higher than that of their grantor, no matter whether the present
holder be a public service corporation operating water pipes, Spring Brook
Water Co. v. Pennsylvania Coal Co., 54 Pa. Super. Ct. 380; a school
district which has erected its building on a lot acquired without the right
of support, Commonwealth v. Clearview Coal Co., 256 Pa. St. 328; or a city
which has similarly acquired its streets by dedication from one who himself
had no right of support, Scranton v. Phillips, 57 Pa. Super. Ct. 633.
Apart from the consideration that the lives and safety of such classes of
persons and those whom they permit to come on their property need no
protection other than a proper notice to remove temporarily until it
becomes safe to return, it is obvious that the Kohler Act is not directed
to the safety of the public, but is for the benefit solely of a particular
That there may be other private persons in a situation similar to [***11]
that of these plaintiffs merely makes the act for the benefit of a
particular class of individuals, and not for the benefit of the public
A further feature of the Kohler Act which demonstrates that it was not
enacted for the protection of the general public is that by its terms it
does not apply to all those similarly endangered. The life or safety of a
surface owner is obviously subjected to equal jeopardy irrespective of
whether the hole into which he falls was formed by the mining of bituminous
or anthracite coal, or, for that matter, of iron ore, quartz or gravel. The
Kohler Act, however, applies only to subsidences caused by the mining of
A further evidence that the act is disingenuous is found in ß 5. If it were
really to protect life and safety, the municipal authorities would
naturally be empowered, in case of threatened subsidence, to rope off the
endangered area and to compel the occupants to vacate the premises.
Instead, they are merely empowered to shut up the mine and to exclude the
Further legislative evidence of the true purpose is found in the provisions
of another statute, passed on the same day and conceded [***12] to be its
twin measure. This is the so-called Fowler Act, discussed in the dissenting
opinion. There could be no clearer demonstration than that afforded by the
intrinsic evidence of these two interrelated acts, that the sole design of
the framers of both was to coerce the coal companies either into donating
to the surface owner sufficient coal in place to support the surface, or
paying him the damages which, as a means of getting a cheap lot, he had
expressly bargained away.
The means adopted by the Kohler Act are not reasonably necessary for the
accomplishment of its ostensible purpose, and are unduly oppressive upon
IV. If surface support in the anthracite district is necessary for public
use, it can constitutionally be acquired only by condemnation with just
compensation to the parties affected. Commonwealth v. Clearview Coal Co.,
256 Pa. St. 328; Raub v. Lackawanna County, 60 Pa. Super. Ct. 462; Chicago,
Milwaukee & St. Paul Ry. Co. v. Wisconsin, 238 U.S. 491.
The Barrier Pillar Law, involved in Plymouth Coal Co. v. Pennsylvania, 232
U.S. 531, in no sense operates to transfer, without compensation, a
permanent property right or easement from one party to [***13]
another.The compensation to each owner for the burden of maintaining the
pillar on his side is found in the reciprocal benefit from the pillar
maintained by his neighbor. See Bowman v. Ross, 167 U.S. 548. Furthermore,
it obviously has a direct relation to the lives and safety of men working
in coal mines. The restriction imposed is but temporary and incidental; it
applies to but a very small part of the coal at a point along the land
line, where it may well be left in place without interfering with the
operation until both mines are almost exhausted, whereupon, as the Court
doubtless knows, the adjoining owners enter into an agreement to remove the
The Rent Cases ( 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) are not
authority for the proposition that a property right of one may under the
police power be transferred to another without compensation, even in time
of emergency. Quite the contrary.
The principle involved in these cases was, it is submitted, not the police
power but that of eminent domain. When the State regulates railroad rates,
the fair return which the Constitution guarantees [***14] to the
stockholders is really, when analysed, the just compensation required in
condemnation proceedings. Instead of condemning a perpetual lease on the
railroad with a fair rental for the stockholders and then operating the
road at cost for the use of the entire public, the government allows the
stockholders to operate it but requires them to serve the whole public
without discrimination and permits them to net only the reasonable return
to which their fair rental would have amounted. There is thus an essential
difference in kind between a safety appliance act and a rate regulation.
The one is an exercise of the police power, a prohibition of something
injurious to the public, without the transfer of any property or property
right of another either with or without compensation. The other is in its
essence an exercise of the power of eminent domain, involving not only the
requirement that it be for the public benefit as distinguished from that of
a privileged class, but also the requirement of just compensation. Such
were the Rent Laws. The majority opinion disclaimed the introduction of any
new principle of constitutional law; it merely held applicable a recognized
rule to the [***15] admitted facts of the case. There has never been any
doubt that a railroad company can be prohibited from charging more than
reasonable rates, or that it can be precluded from putting one passenger
off its trains to make room for another who is willing to pay a higher
fare. There was no suggestion in the arguments or in the minority opinion
that the means adopted were not necessary and appropriate to remedy the
existing evil or that any other method was available to produce the same
result which would be attended with less hardship to the landlords. Nor was
there any attempt by the law to require the landlord to give the use of his
property for nothing, nor any thought that the tenant should get something
for nothing. All that the law did was, in view of the temporary suspension
of the law of supply and demand, temporarily to suspend the landlord's
arbitrary right of extortion, the power to exercise which was the direct
and temporary result of the national crisis.
Even if it appeared that the owners of all the coal under buildings having
no contractual right of support, intended presently to remove it, there
would be no analogy to the conditions on which the validity of the Rent
[***16] Laws was based, since there is no thought or suggestion that all
the available dwellings, theatres, hotels and cemeteries are situated over
The Rent Laws were merely a temporary measure. They provided reasonable
compensation to the landlord; they constituted virtually a condemnation by
the sovereign of the term to November 1, 1922, and a transfer of this term
to the tenant at a reasonable cost, the just compensation provided by the
The Kohler Act, however, is a permanent provision. It transfers for all
time the Third Estate, -- the right to the perpetual use of this coal -- in
the Mahon lot from the Coal Company to private individuals, and that
without any compensation whatever.
In the court below, counsel, in discussing the Rent Cases, contended that
the justification for the Kohler Act is even stronger than for the Rent
Laws, insomuch as the latter were merely to provide housing facilities, a
necessity of life, whereas the Kohler Act is to "protect life itself." The
obvious answer to this specious argument is, first, that the Kohler Act is
on its face unnecessary to protect the lives of Mr. and Mrs. Mahon, and
will be effective to that end only in [***17] case they neglect to take
the precautions for their own protection which their restricted rights in
their property demand that they shall take. Second, there is no rule of law
which entitles a State, even to protect life itself, to transfer the
property of one citizen without compensation to another.
Just here comes into force the distinction between the police power and the
power of eminent domain, so clearly stated in a recent decision by the
writer of the majority opinion in the case at bar -- Jackman v. Rosenbaum
Co., 263 Pa. St. 158, 166.
An owner of dangerous drugs may, under the police power, be restricted from
selling them without a license, or without a prescription, or may even be
prohibited from selling them at all. This would constitute an exercise of
the police power.
In time of epidemic it is conceivable that a State might temporarily
prohibit the hoarding of essential medicines and might require physicians
and druggists to sell them at reasonable rates. Even at such a time, the
druggist could not be required to dispense his medicines for nothing, or a
baker his bread, and that though people were dying or starving for want of
drugs and food.
If every word in [***18] the preamble of the Kohler Act were true there
would still be no justification for the uncompensated transfer of the
beneficial use of the supporting coal from defendant to plaintiff. No
emergency will justify the transfer of property or a tangible property
right from one citizen to another without just compensation.
The Kohler Act is not a police regulation. It is not a valid exercise of
the right of eminent domain because, first, it is not exercised for the
benefit of the public generally, and second, because it provides no
compensation whatever to the party whose property is taken.
Mr. W. L. Pace, with whom Mr. H. J. Mahon was on the brief, for defendants
Mr. George Ross Hull, with whom Mr. George E. Alter, Attorney General of
the State of Pennsylvania, was on the brief, for the State of Pennsylvania,
by special leave of court, as amici curiae.
The problem presented to the legislature involved the interests of the
public in the life, health and safety of persons living in the mining
communities, in the wholesale destruction of surface property, and in
securing the maximum yield of coal from the mines; the interest of the
surface owner in his property and of the [***19] surface dweller in his
own safety; the interest of the mine owner in his labor supply and in
securing the maximum yield of coal from his property. This problem after
elaborate investigation, and abortive attempts, was sought to be met by the
"Fowler Act," 1921, P.L. 1192, establishing the State Anthracite Mine Cave
Commission and the "Kohler Act," id. 1198, here involved.
As was said by Mr. Chief Justice von Moschzisker, in this case: "In
determining whether the act is a reasonable piece of legislation within the
police power, we may 'call to our aid all those external or historical
facts which are necessary for this purpose and which led to the
A reading of the Kohler Act involved in this appeal discloses that it is
not directed to the reimbursement of surface owners for damage which may be
caused either to persons or property, but is directed solely to the
protection of human life. There are probably millions of dollars in surface
improvements which are not reached and which were not intended to be
reached by the provisions of this act. In view of the historical facts it
is apparent that the good faith of this exercise of the police power is
beyond question. [***20]
The legislative determination of the existence of a situation inimical to
the public welfare which calls for an exercise of the police power, while
it may be scrutinized by the courts, is not to be set aside unless it
clearly appear that such determination was not well founded. Lawton v.
Steele, 152 U.S. 133; McLean v. Arkansas, 211 U.S. 539; Lower Vein Coal Co.
v. Industrial Board, 255 U.S. 144; Nolan v. Jones, 263 Pa. St. 124; Levy
Leasing Co. v. Siegel, 258 U.S. 242.
The protection of the life, health and safety of the public in the
anthracite mining communities is the primary purpose of the act. Its
interference with property rights is merely incidental. Commonwealth v.
Alger, 7 Cush. 84; Holden v. Hardy, 169 U.S. 392.
Land which is underlaid with coal is a kind of property which, by reason of
operations conducted upon it or by reason of contracts made with respect to
it, may become a grave menace to the life, health and safety of the public.
The dangers incident to operations conducted on coal lands have been met by
extensive and elaborate codes of laws regulating coal mining. The
constitutionality of these laws has long since been settled. The danger to
the public [***21] arising from the contracts entered into with respect
to coal lands, however, was not clearly recognized until recent years.
As the law relating to coal lands developed prior to the enactment of the
Kohler Act, it permitted the creation, by appropriate conveyances, of three
distinct property rights or estates in lands: (1) the surface, (2) the
coal, and (3) the right of support; and these estates might be vested in
different persons at the same time. Graff Furnace Co. v. Scranton Coal Co.,
244 Pa. St. 592; Penman v. Jones, 256 Pa. St. 416; Charnetski v. Coal
Mining Co., 270 Pa. St. 459. Owners in fee of coal lands might part with
their right to the surface, reserving to themselves the right to mine all
of the coal without any obligation to support the surface and without
liability for any damage resulting from its subsidence.
It is probable that when conveyances of surface rights were first made, the
right to remove coal without liability to the surface owners was reserved
merely as a safeguard against an occasional injury which might occur
through first mining; and that second mining, or the removal of pillars,
was not then in contemplation. The large extent of territory underlaid
[***22] with anthracite coal, the large number of people living upon its
surface, and the very obvious menace to the life, health and safety of
these people, clothed these lands and these mining operations with a public
interest which manifestly made them a proper subject for the exercise of
the police power. It the public welfare be threatened by the existence or
the certain occurrence of a grave public danger the legality of an exercise
of the police power to prevent or to remedy cannot be questioned.
The exercise of the police power to regulate contracts relating to land has
been sustained where the disaster threatened was of less serious
consequence that that which is dealt with in the act now under
consideration. Block v. Hirsh, 256 U.S. 135; Levy Leasing Co. v. Siegel,
258 U.S. 242.
It will be urged, however, that these cases are not applicable to the case
now under consideration, for the reason that in them the acts involved were
emergency laws passed to meet an urgent temporary necessity and expressly
limited by their terms to a brief period. Ordinarily the operation of
economic laws regulates the supply of houses so that dwellings for rent are
not clothed with such a public [***23] interest as would subject the
contracts of landlord and tenant to the regulatory exercise of the police
power. The nature of the property, the rights in it and the contracts
relating to it, are such that regulation of the character contained in
those acts could be justified only by the existence of extraordinary
circumstances which the legislature and the courts knew must disappear when
the emergency passed. But we do not understand the Court to mean that if a
situation which threatened the public safety and welfare might be dealt
with in an emergency, it could not be controlled by appropriate regulation
if that emergency continued. The sound reason which sustained the validity
of those acts during the period when the emergency was reasonably expected
to continue will sustain as a permanent change an act which is intended to
meet a permanent menace to the public. Accordingly the same fundamental
principles of law which sustained the rent laws during the period of
emergency, will sustain the Kohler Act.
It should be noted also in considering the application of the rent cases,
that the case at bar falls within a class of cases which the dissenting
opinion recognized as proper for [***24] the exercise of the police
power. Block v. Hirsh, 256 U.S. 135, 167.
The Kohler Act is in line with numerous familiar cases wherein legislation
involving the exercise of the police power has been sustained. The well
established restriction placed upon the right of public service companies
to fix rates by contract, the power to forbid absolutely the sale of
oleomargarine for the purpose of preventing possible frauds, the power to
prevent the sale of unwholesome meats and other foods, the power to
regulate to prohibit the manufacture of corn and rye into whiskey, the
power to forbid mining to the boundary of a mine property without leaving a
barrier pillar of sufficient thickness to prevent possible injury from the
flooding of an adjoining mine, are familiar illustrations of the exercise
of the police power enacted to avoid dangers which are neither so grave nor
so certain as those which the Kohler Act seeks to prevent.
In its application to all coal lands where the right of surface support is
still vested in the surface owner, the effect of the Kohler Act is to
prevent the making of any valid contract whereby the right of support may
be separated from the surface ownership in [***25] such manner as to
permit the subsidence of any of the structures or facilities mentioned in
the act. It must be remembered that there is a broad field in which the
Kohler Act does thus operate. If the circumstances which now exist in the
anthracite regions could have been foreseen and certainly predicted by the
legislature a half century ago, it would clearly have been within its power
to limit the owner's right to contract, by the enactment of such a
regulatory measure as the Kohler Act. And we are confident that if it were
not for the existence of contracts already entered into, the
constitutionality of this act would not have been questioned.
It is an act, prospective in its operation, regulating the future conduct
of mining for anthracite coal. It operates generally upon all mines,
including those now being operated and all which may be opened and operated
in the future. It operates without regard to any private contracts which
may have been made relating to surface support. It operates alike upon
lands where the surface owner still has the right of support, and upon
those where the right of support has been separated from ownership of the
surface and is held by the owner [***26] of the coal or by a third
But if the act in its operation upon lands where the right of support and
the ownership of the surface have not been separated, be a constitutional
exercise of the police power, it is equally valid in its operation upon
lands where these interests are held by different persons.
Persons cannot remove their property from the reach of the police power by
entering into contracts with respect to it. Marcus Brown Holding Co. v.
Feldman, 256 U.S. 170.
All property within the State is held, and all contracts are entered into
subject to the future exercise of the police power of the State. Every such
agreement was entered into by the parties with full knowledge that whenever
the existence of such contracts and the exercise of the license reserved
should threaten the life, health or safety of the people, the Commonwealth
in its sovereign power might interpose and restrict the use of those
contract rights to such extent as might be necessary in the public
interest. Owners of coal lands, who saw highways being laid out and
improved, railroads and trolley lines built, sewers and gas mains laid,
light, telephone and power wires stretched overhead, depots, [***27]
stores, theatres, hotels and dwellings constructed, and who, perhaps as
many of the coal companies did, laid out the surface in building lots
dedicating streets and alleys to public use, selling the lots for the
purpose of having dwellings erected thereon, -- such owners were bound to
know that whenever the time should come when the exercise of the license
which they had reserved would threaten the welfare of the communities upon
the surface, the police power of the State might be interposed to restrict
their rights. Scranton v. Public Service Commission, 268 Pa. St. 192;
Relief Electric Light, Heat & Power Company's Petition, 69 Pa. Super Ct. 1,
In Russell v. Sebastian, 233 U.S. 195, and New Orleans Gas Light Co. v.
Louisiana Light Co., 115 U.S. 650, no exercise of the police power was
involved; in the latter, this Court recognized the principle which we have
The Kohler Act does not take the property of the plaintiff in error.
Commonwealth v. Plymouth Coal Co., 232 Pa. St. 141; s. c. 232 U.S. 531. The
act does not go as far as the Barrier Pillar Act. It contains no provision
requiring any mine owner to leave coal in place. If natural support other
than coal in the [***28] pillars be available, or if artificial support
be provided, every pound of coal may be removed from the mines.
Nor does it transfer the right of support from the owner of the coal to the
surface owner. This right, license or estate in the land is nothing more
than an immunity from civil liability for damages to the surface owner.
Under the Kohler Act, this immunity continues.
If the act were designed, as the plaintiff in error contends, for the
protection of the property rights of the surface owners, and not as a bona
fide and reasonable exercise of the police power, it would contain two
features which are conspicuously absent from it: First, it would provide
that the liability of the defendant for damages to the person or property
of the plaintiffs which was released by the contract contained in the deed,
should be restored, second, it would apply generally to all valuable
structures upon the surface.
Notice to the surface owner o vacate his property is not sufficient to
prevent injury to him or to the public. This same objection might have been
made to the reasonableness of all of the legislation which has been enacted
for the protection of persons employed in mines. Communities [***29] must
exist in or near the vicinity of the mines or they cannot be operated, and
it is a matter of concern to the public that persons be permitted to dwell
there in safety. Even if it were possible to remove whole cities from their
present locations, and reconstruct them upon sites beyond the coal
measures, those sites may be so distant from the mines and so separated by
the topography of the country that access to and from the collieries would
be impracticable and the mines would close for want of labor. Moreover,
cities are built where nature affords an opportunity for them. Industrial
communities cannot be perched upon the mountains nor in places inaccessible
to roads and railroads. Nor is it always practicable or possible for the
individual dweller upon the surface to find another house in which to live.
Throughout the State of Pennsylvania and elsewhere in this and foreign
countries there is an acute shortage of houses due to conditions prevailing
during the war, and there is no doubt that this condition, which has
elsewhere proven so serious as to give rise to the legislation reviewed in
the Rent Cases (already cited), has been aggravated in the coal mining
communities by [***30] reason of the very conditions which gave rise to
the Kohler Act. Or it may be that the occupants of the dwelling will
recklessly disregard the notice given and take the chance of escaping
injury. The notice will not avail to prevent the disastrous results of his
necessity or folly. See Commonwealth v. Plymouth Coal Co., 232 Pa. St. 141,
The only practicable way in which the life, health and safety of the public
in these communities may be adequately safeguarded is by the enforcement of
such restrictions as are contained in the Kohler Act, and for this reason
those restrictions are reasonable even though they limit to some extent the
rights of others.
Mr. Philip V. Mattes, by leave of court, filed a brief on behalf of the
City of Scranton, as amicus curiae.
Mr. Philip V. Mattes, Mr. Frank M. Walsh and Mr. Owen J. Roberts, by leave
of court, filed a brief on behalf of the Scranton Surface Protective
Association, as amici curiae.
Mr. C. La Rue Munson and Mr. Edgar Munson, by leave of court, filed a brief
on behalf of the Scrantor Gas & Water Company, as amici curiae.
OPINION: [*412] [**159] MR. JUSTICE HOLMES delivered the opinion of the
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
[***32] 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
The 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.
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 [***33] 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 [*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 [***34] 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 [**160] 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 [***35] 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 [*415] 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 [***36]
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
[***37] 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. In general it
is not plain that a man's misfortunes or necessities will justify his