Pennsylvania Coal Co. v. Mahon

PENNSYLVANIA COAL COMPANY v. MAHON ET AL.

Error to the Supreme Court of the State of Pennsylvania.

No. 549. Argued November 14, 1922 — Decided December 11, 1922.

274 Pa. St. 489, reversed.

Opinion of the Court by Mr. Justice Holmes. Mr. Justice Brandeis, dissenting.

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 error. Briefs were also filed by the Attorney General of Pennsylvania, by the City of Scranton, and by amici curiae including the Scranton Surface Protective Association and the Scranton Gas & Water Company.

The opinions occupy pages 393 through 422 of volume 260 of the United States Reports.

[260 U.S. 393] “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 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. P. 413.”

[260 U.S. 412] “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.”

[260 U.S. 412] “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.”

[260 U.S. 412] “The statute forbids the mining of anthracite coal in such way as to cause the subsidence of, among other [260 U.S. 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.”

[260 U.S. 413] “Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law. As long recognized, some values are enjoyed under an implied limitation and must yield to the police power. But obviously the implied limitation must have its limits, or the contract and due process clauses are gone. One fact for consideration in determining such limits is the extent of the diminution. When it reaches a certain magnitude, in most if not in all cases there must be an exercise of eminent domain and compensation to sustain the act. So the question depends upon the particular facts. The greatest weight is given to the judgment of the legislature, but it always is open to interested parties to contend that the legislature has gone beyond its constitutional power.”

[260 U.S. 413] “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.”

[260 U.S. 414] “The extent of the public interest is shown by the statute to be limited, since the statute ordinarily does not apply to land when the surface is owned by the owner of the coal. Furthermore, it is not justified as a protection of personal safety. That could be provided for by notice. Indeed the very foundation of this bill is that the defendant gave timely notice of its intent to mine under the house. On the other hand the extent of the taking is great. It purports to abolish what is recognized in Pennsylvania as an estate in land — a very valuable estate — and what is declared by the Court below to be a contract hitherto binding the plaintiffs. If we were called upon to deal with the plaintiffs' position alone, we should think it clear that the statute does not disclose a public interest sufficient to warrant so extensive a destruction of the defendant's constitutionally protected rights.”

[260 U.S. 414] The Court then explained that, the general validity of the act having been argued by the Attorney General of the State, the City of Scranton, and representatives of other extensive interests, it was its duty to go farther in the statement of its opinion, “in order that it may be known at once, and that further suits should not be brought in vain.”

[260 U.S. 414] “It is our opinion that the act cannot be sustained as an exercise of the police power, so far as it affects the mining of coal under streets or cities in places where the right to mine such coal has been reserved. As said in a Pennsylvania case, ‘For practical purposes, the right to coal consists in the right to mine it.’ Commonwealth v. Clearview Coal Co., 256 Pa. St. 328, 331. What makes the right to mine coal valuable is that it can be exercised with profit. To make it commercially impracticable to mine certain coal has very nearly the same effect for constitutional purposes as appropriating or destroying it. This [260 U.S. 415] we think that we are warranted in assuming that the statute does.”

[260 U.S. 415] “It is true that in Plymouth Coal Co. v. Pennsylvania, 232 U. S. 531, it was held competent for the legislature to require a pillar of coal to be left along the line of adjoining property, that, with the pillar on the other side of the line, would be a barrier sufficient for the safety of the employees of either mine in case the other should be abandoned and allowed to fill with water. But that was a requirement for the safety of employees invited into the mine, and secured an average reciprocity of advantage that has been recognized as a justification of various laws.”

[260 U.S. 415] “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.”

[260 U.S. 415] “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.”

[260 U.S. 415] “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, [260 U.S. 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 shifting the damages to his neighbor's shoulders. Spade v. Lynn & Boston R. R. Co., 172 Mass. 488, 489. We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change. As we already have said, this is a question of degree — and therefore cannot be disposed of by general propositions. But we regard this as going beyond any of the cases decided by this Court.”

[260 U.S. 417] “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?”

[260 U.S. 417] “Every restriction upon the use of property imposed in the exercise of the police power deprives the owner of some right theretofore enjoyed, and is, in that sense, an abridgment by the State of rights in property, without making compensation. But restriction imposed to protect the public health, safety or morals from dangers threatened is not a taking. The restriction here in question is merely the prohibition of a noxious use. The property so restricted remains in the possession of its owner. The State does not appropriate it or make any use of it. The State merely prevents the owner from making a use which interferes with paramount rights of the public.”

[260 U.S. 418] “Restriction upon use does not become inappropriate as a means, merely because it deprives the owner of the only use to which the property can then be profitably put. The liquor and the oleomargarine cases settled that. Mugler v. Kansas, 123 U. S. 623, 668, 669; Powell v. Pennsylvania, 127 U. S. 678, 682. See also Hadacheck v. Los Angeles, 239 U. S. 394; Pierce Oil Corporation v. City of Hope, 248 U. S. 498.”

[260 U.S. 422] “The confusion 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 . . . . 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.”

Editorial note. This edition reproduces the Reporter of Decisions apparatus at 260 U.S. 393 in full and extended verbatim passages of the opinion of the Court (260 U.S. 412–416) and of Justice Brandeis's dissent (260 U.S. 416–422), arranged in the order in which they appear in the bound volume and marked with the official United States Reports page on which each passage begins.

Editorial limitations, declared under Authority Library § 09.4: (1) the reproduction is selective rather than complete — the arguments of counsel at 260 U.S. 394–411 are not reproduced, and passages of the dissent between pages 418 and 422 are omitted; (2) the summary of the Kohler Act printed by the Reporter in the footnote to the syllabus is not reproduced; (3) sentences of Society prose that summarise intervening text stand outside quotation marks in every case; and (4) obvious scanning defects in the digitised volume (for example “MAlION” for “MAHON” and “Koler” for “Kohler” in the opinion text) have been corrected against the surrounding text and the syllabus.

Editorial note. Metadata verified against the bound volume in the course of this edition: the docket number (No. 549), the argument date (November 14, 1922), the writ (error to the Supreme Court of Pennsylvania), the judgment below (274 Pa. St. 489), and counsel of record were absent from the prior record and are now recorded.

Editorial note. By deed the coal company conveyed the surface while expressly reserving the right to remove all coal beneath it, the grantee taking the premises with the risk of subsidence and waiving all claim for damages. Pennsylvania's Kohler Act of 1921 then forbade anthracite mining that caused the subsidence of any dwelling used as a human habitation. The surface owners sued to enjoin mining that would remove the support of their house.

Editorial note. The Court of Common Pleas found the threatened damage but denied an injunction, holding the statute unconstitutional as applied. The Supreme Court of Pennsylvania agreed that the company held constitutionally protected contract and property rights but sustained the statute as a police-power measure and directed a decree for the plaintiffs, 274 Pa. St. 489. A writ of error brought the case to the Supreme Court of the United States, which reversed.

Editorial note. The Kohler Act, as applied to the coal company's reserved support estate, went beyond the police power and took private property without compensation, contrary to the Fifth and Fourteenth Amendments. Where the extent of the diminution reaches the point of destroying an estate recognized by state property law, the regulation is a taking.

Editorial note. Justice Holmes reasoned that government could hardly go on if every diminution of value were compensable, so the question is one of degree: the extent of the diminution measured against the public interest served. Pennsylvania law recognized the support estate as a distinct interest in land; the statute made it commercially impracticable to mine the reserved coal, which the Court equated with appropriating or destroying it. The public interest asserted was largely the protection of a single private landowner who had bargained away the right of support, so the ordinary reciprocity of advantage that sustains police-power regulation was absent.

Editorial note. Mahon originates the proposition that a regulation, without any physical appropriation, may constitute a taking. It supplies the vocabulary of degree — how far is too far — that every later regulatory-takings framework refines rather than replaces, and it fixes state property law as the source of the interest against which diminution is measured.

Editorial note. Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978), converted Holmes's inquiry of degree into a three-factor ad hoc analysis. Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470 (1987), sustained a comparable subsidence statute, treating Mahon as controlled by its narrow record and by the absence of a broad public purpose. Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), drew on Mahon in recognizing a categorical rule for the total deprivation of economically beneficial use.

Editorial note. Read with U.S. Const. amend. V (Takings Clause) and U.S. Const. amend. XIV, § 1 (application to the States).