No. 549.




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






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

other person."


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

of law.


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

of flesh.


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

anthracite coal.


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

workmen therefrom.


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

such mines.


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

in error.


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

[***31] 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

[***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