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. 260 U. S.
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. 260 U. S.
3. The rights of the public in a street, purchased or laid out
by eminent domain, are those that it has paid for. P. 260 U. S.
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 a
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,
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. 260 U. S.
274 Pa.St. 489 reversed.
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 a way as to remove supports and
cause subsidence of the surface and of their house.
Page 260 U. S. 412
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is a bill in equity brought by the defendants in error to
prevent the Pennsylvania Coal Company from mining under their
property in such way as to remove the supports and cause a
subsidence of the surface and of their house. The bill sets out a
deed executed by the Coal Company in 1878, under which the
plaintiffs claim. The deed conveys the surface, but, in express
terms, reserves the right to remove all the coal under the same,
and the grantee takes the premises with the risk, and waives all
claim for damages that may arise from mining out the coal. But the
plaintiffs say that, whatever may have been the Coal Company's
rights, they were taken away by an Act of Pennsylvania, approved
May 27, 1921, P.L. 1198, commonly known there as the Kohler Act.
The Court of Common Pleas found that, if not restrained, the
defendant would cause the damage to prevent which the bill was
brought, but denied an injunction, holding that the statute, if
applied to this case, would be unconstitutional. On appeal, the
Supreme Court of the State agreed that the defendant had contract
and property rights protected by the Constitution of the United
States, but held that the statute was a legitimate exercise of the
police power, and directed a decree for the plaintiffs. A writ of
error was granted bringing the case to this Court.
The statute forbids the mining of anthracite coal in such way as
to cause the subsidence of, among other
Page 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.
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
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.
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
13 Allen 95, 103. The extent of
Page 260 U. S. 414
the public interest is shown by the statute to be limited, since
the statute ordinarily does not apply to land when the surface is
owned by the owner of the coal. Furthermore, it is not justified as
a protection of personal safety. That could be provided for by
notice. Indeed, the very foundation of this bill is that the
defendant gave timely notice of its intent to mine under the house.
On the other hand, the extent of the taking is great. It purports
to abolish what is recognized in Pennsylvania as an estate in land
-- a very valuable estate -- and what is declared by the Court
below to be a contract hitherto binding the plaintiffs. If we were
called upon to deal with the plaintiffs' position alone, we should
think it clear that the statute does not disclose a public interest
sufficient to warrant so extensive a destruction of the defendant's
constitutionally protected rights.
But the case has been treated as one in which the general
validity of the act should be discussed. The Attorney General of
the State, the City of Scranton, and the representatives of other
extensive interests were allowed to take part in the argument
below, and have submitted their contentions here. It seems,
therefore, to be our duty to go farther in the statement of our
opinion, in order that it may be known at once, and that further
suits should not be brought in vain.
It is our opinion that the act cannot be sustained as an
exercise of the police power, so far as it affects the mining of
coal under streets or cities in places where the right to mine such
coal has been reserved. As said in a Pennsylvania case, "For
practical purposes, the right to coal consists in the right to mine
it." Commonwealth v. Clearview Coal Co.,
256 Pa.St. 328,
331. What makes the right to mine coal valuable is that it can be
exercised with profit. To make it commercially impracticable to
mine certain coal has very nearly the same effect for
constitutional purposes as appropriating or destroying it. This
Page 260 U. S. 415
we think that we are warranted in assuming that the statute
It is true that, in Plymouth Coal Co. v. Pennsylvania,
232 U. S. 531
was held competent for the legislature to require a pillar of coal
to the left along the line of adjoining property, that with the
pillar on the other side of the line would be a barrier sufficient
for the safety of the employees of either mine in case the other
should be abandoned and allowed to fill with water. But that was a
requirement for the safety of employees invited into the mine, and
secured an average reciprocity of advantage that has been
recognized as a justification of various laws.
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
208 U. S. 605
When this seemingly absolute protection is found to be qualified by
the police power, the natural tendency of human nature is to extend
the qualification more and more, until at last private property
disappears. But that cannot be accomplished in this way under the
Constitution of the United States.
The general rule, at least, is that, while property may be
regulated to a certain extent, if regulation goes too far, it will
be recognized as a taking. It may be doubted how far exceptional
cases, like the blowing up of a house to stop a conflagration, go
-- and, if they go beyond the general rule,
Page 260 U. S. 416
whether they do not stand as much upon tradition as upon
principle. Bowditch v. Boston, 101 U. S.
. In general, it is not plain that a man's misfortunes
or necessities will justify his shifting the damages to his
neighbor's shoulders. Spade v. Lynn & Boston R.R. Co.,
172 Mass. 488, 489. We are in danger of forgetting that a strong
public desire to improve the public condition is not enough to
warrant achieving the desire by a shorter cut than the
constitutional way of paying for the change. As we already have
said, this is a question of degree -- and therefore cannot be
disposed of by general propositions. But we regard this as going
beyond any of the cases decided by this Court. The late decisions
upon laws dealing with the congestion of Washington and New York,
caused by the war, dealt with laws intended to meet a temporary
emergency and providing for compensation determined to be
reasonable by an impartial board. They were to the verge of the
law, but fell far short of the present act. Block v.
Hirsh, 256 U. S. 135
Marcus Brown Holding Co. v. Feldman, 256 U.
; Levy Leasing Co. v. Siegel,
258 U. S. 242
We assume, of course, that the statute was passed upon the
conviction that an exigency existed that would warrant it, and we
assume that an exigency exists that would warrant the exercise of
eminent domain. But the question at bottom is upon whom the loss of
the changes desired should fall. So far as private persons or
communities have seen fit to take the risk of acquiring only
surface rights, we cannot see that the fact that their risk has
become a danger warrants the giving to them greater rights than
* 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 that act
"shall not apply to [mines in] townships of the second class
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 § 8 reads: "The courts of
common pleas shall have power to award injunctions to restrain
violations of this act." P.L. 1921, p. 1198.
MR. JUSTICE BRANDEIS dissenting.
The Kohler Act prohibits, under certain conditions, the mining
of anthracite coal within the limits of a city in such a manner or
to such an extent
"as to cause the . . .
Page 260 U. S. 417
subsidence of . . . any dwelling or other structure used as a
human habitation, or any factory, store, or other industrial or
mercantile establishment in which human labor is employed."
Coal in place is land, and the right of the owner to use his
land is not absolute. He may not so use it as to create a public
nuisance, and uses, once harmless, may, owing to changed
conditions, seriously threaten the public welfare. Whenever they
do, the legislature has power to prohibit such uses without paying
compensation, and the power to prohibit extends alike to the
manner, the character, and the purpose of the use. Are we justified
in declaring that the Legislature of Pennsylvania has, in
restricting the right to mine anthracite, exercised this power so
arbitrarily as to violate the Fourteenth Amendment?
Every restriction upon the use of property imposed in the
exercise of the police power deprives the owner of some right
theretofore enjoyed, and is, in that sense, an abridgment by the
state of rights in property without making compensation. But
restriction imposed to protect the public health, safety or morals
from dangers threatened is not a taking. The restriction here in
question is merely the prohibition of a noxious use. The property
so restricted remains in the possession of its owner. The state
does not appropriate it or make any use of it. The state merely
prevents the owner from making a use which interferes with
paramount rights of the public. Whenever the use prohibited ceases
to be noxious -- as it may because of further change in local or
social conditions -- the restriction will have to be removed and
the owner will again be free to enjoy his property as
The restriction upon the use of this property cannot, of course,
be lawfully imposed unless its purpose is to protect the public.
But the purpose of a restriction does not cease to be public
because, incidentally, some private
Page 260 U. S. 418
persons may thereby receive gratuitously valuable special
benefits. Thus, owners of low buildings may obtain, through
statutory restrictions upon the height of neighboring structures,
benefits equivalent to an easement of light and air. Welch v.
Swasey, 214 U. S. 91
Compare Lindsley v. Natural Carbonic Gas Co., 220 U. S.
; Walls v. Midland Carbon Co., 254 U.
. Furthermore, a restriction, though imposed for a
public purpose, will not be lawful unless the restriction is an
appropriate means to the public end. But to keep coal in place is
surely an appropriate means of preventing subsidence of the
surface; and ordinarily it is the only available means. Restriction
upon use does not become inappropriate as a means merely because it
deprives the owner of the only use to which the property can then
be profitably put. The liquor and the oleomargine cases settled
that. Mugler v. Kansas, 123 U. S. 623
123 U. S.
-669; Powell v. Pennsylvania, 127 U.
, 127 U. S. 682
See also Hadacheck v. Los Angeles, 239 U.
; Pierce Oil Corporation v. City of Hope,
248 U. S. 498
is a restriction imposed through exercise of the police power
inappropriate as a means, merely because the same end might be
effected through exercise of the power of eminent domain, or
otherwise at public expense. Every restriction upon the height of
buildings might be secured through acquiring by eminent domain the
right of each owner to build above the limiting height; but it is
settled that the state need not resort to that power. Compare
Laurel Hill Cemetery v. San Francisco, 216 U.
; Missouri Pacific Railway Co. v. Omaha,
235 U. S. 121
by mining anthracite coal, the owner would necessarily unloose
poisonous gases, I suppose no one would doubt the power of the
state to prevent the mining, without buying his coal fields. And
why may not the state, likewise without paying compensation,
prohibit one from digging so deep or excavating so near the
surface, as to expose the community to
Page 260 U. S. 419
like dangers? In the latter case, as in the former, carrying on
the business would be a public nuisance.
It is said that one fact for consideration in determining
whether the limits of the police power have been exceeded is the
extent of the resulting diminution in value, and that here the
restriction destroys existing rights of property and contract. But
values are relative. If we are to consider the value of the coal
kept in place by the restriction, we should compare it with the
value of all other parts of the land. That is, with the value not
of the coal alone, but with the value of the whole property. The
rights of an owner as against the public are not increased by
dividing the interests in his property into surface and subsoil.
The sum of the rights in the parts can not be greater than the
rights in the whole. The estate of an owner in land is
grandiloquently described as extending ab orco usque ad
But I suppose no one would contend that, by selling
his interest above 100 feet from the surface, he could prevent the
state from limiting, by the police power, the height of structures
in a city. And why should a sale of underground rights bar the
state's power? For aught that appears, the value of the coal kept
in place by the restriction may be negligible as compared with the
value of the whole property, or even as compared with that part of
it which is represented by the coal remaining in place and which
may be extracted despite the statute. Ordinarily a police
regulation, general in operation, will not be held void as to a
particular property, although proof is offered that, owing to
conditions peculiar to it, the restriction could not reasonably be
applied. See Powell v. Pennsylvania, 127 U.
, 127 U. S. 681
127 U. S. 684
Murphy v. California, 225 U. S. 623
225 U. S. 629
But even if the particular facts are to govern, the statute should,
in my opinion be upheld in this case. For the defendant has failed
to adduce any evidence from which
Page 260 U. S. 420
it appears that to restrict its mining operations was an
unreasonable exercise of the police power. Compare Reinman v.
Little Rock, 237 U. S. 171
237 U. S. 177
237 U. S. 180
Pierce Oil Corporation v. City of Hope, 248 U.
, 248 U. S. 500
Where the surface and the coal belong to the same person,
self-interest would ordinarily prevent mining to such an extent as
to cause a subsidence. It was, doubtless, for this reason that the
legislature, estimating the degrees of danger, deemed statutory
restriction unnecessary for the public safety under such
It is said that this is a case of a single dwelling house, that
the restriction upon mining abolishes a valuable estate hitherto
secured by a contract with the plaintiffs, and that the restriction
upon mining cannot be justified as a protection of personal safety,
since that could be provided for by notice. The propriety of
deferring a good deal to tribunals on the spot has been repeatedly
recognized. Welch v. Swasey, 214 U. S.
, 214 U. S. 106
Laurel Hill Cemetery v. San Francisco, 216 U.
, 216 U. S. 365
Patsone v. Pennsylvania, 232 U. S. 138
232 U. S. 144
May we say that notice would afford adequate protection of the
public safety where the legislature and the highest court of the
State, with greater knowledge of local conditions, have declared,
in effect, that it would not? If the public safety is imperiled,
surely neither grant nor contract can prevail against the exercise
of the police power. Fertilizing Co. v. Hyde Park,
97 U. S. 659
Atlantic Coast Line R.R. Co. v. North Carolina,
232 U. S. 548
Union Dry Goods Co. v. Georgia Public Service Corporation,
248 U. S. 372
St. Louis Poster Advertising Co. v. St. Louis,
249 U. S. 269
rule that the state's power to take appropriate measures to guard
the safety of all who may be within its jurisdiction may not be
bargained away was applied to compel carriers to establish grade
crossings at their own expense, despite contracts to the contrary;
Chicago, Burlington & Quincy R.R. Co. v. Nebraska,
170 U. S. 57
Page 260 U. S. 421
and, likewise, to supersede, by an Employers' Liability Act, the
provision of a charter exempting a railroad from liability for
death of employees, since the civil liability was deemed a matter
of public concern, and not a mere private right. Texas &
New Orleans R.R. Co. v. Miller, 221 U.
. Compare Boyd v. Alabama, 94 U. S.
; Stone v. Mississippi, 101 U.
; Butchers' Union Co. v. Crescent City
Co., 111 U. S. 746
Douglas v. Kentucky, 168 U. S. 488
Pennsylvania Hospital v. Philadelphia, 245 U. S.
, 245 U. S. 23
Nor can existing contracts between private individuals preclude
exercise of the police power. "One whose rights, such as they are,
are subject to state restriction cannot remove them from the power
of the state by making a contract about them." Hudson Water Co.
v. McCarter, 209 U. S. 349
209 U. S. 357
Knoxville Water Co. v. Knoxville, 189 U.
, 189 U. S. 438
Rast v. Van Deman & Lewis Co., 240 U.
. The fact that this suit is brought by a private
person is, of course, immaterial. To protect the community through
invoking the aid, as litigant, of interested private citizens is
not a novelty in our law. That it may be done in Pennsylvania was
decided by its Supreme Court in this case. And it is for a state to
say how its public policy shall be enforced.
This case involves only mining which causes subsidence of a
dwelling house. But the Kohler Act contains provisions in addition
to that quoted above; and as to these also, an opinion is
expressed. These provisions deal with mining under cities to such
an extent as to cause subsidence of --
"(a) Any public building or any structure customarily used by
the public as a place of resort, assemblage, or amusement,
including, but not limited to, churches, schools, hospitals,
theaters, hotels, and railroad stations."
"(b) Any street, road, bridge, or other public passageway,
dedicated to public use or habitually used by the public. "
Page 260 U. S. 422
"(c) Any track, roadbed, right of way, pipe, conduit, wire, or
other facility, used in the service of the public by any municipal
corporation or public service company as defined by the Public
A prohibition of mining which causes subsidence of such
structures and facilities is obviously enacted for a public
purpose, and it seems likewise clear that mere notice of intention
to mine would not in this connection secure the public safety. Yet
it is said that these provisions of the act cannot be sustained as
an exercise of the police power where the right to mine such coal
has been reserved. The conclusion seems to rest upon the assumption
that, in order to justify such exercise of the police power, there
must be "an average reciprocity of advantage" as between the owner
of the property restricted and the rest of the community, and that
here such reciprocity is absent. Reciprocity of advantage is an
important consideration, and may even be an essential, where the
state's power is exercised for the purpose of conferring benefits
upon the property of a neighborhood, as in drainage projects,
Wurts v. Hoagland, 114 U. S. 606
Fallbrook Irrigation District v. Bradley, 164 U.
; or upon adjoining owners, as by party wall
provisions, Jackman v. Rosenbaum Co., ante, 260 U. S. 22
where the police power is exercised not to confer benefits upon
property owners but to protect the public from detriment and
danger, there is, in my opinion, no room for considering
reciprocity of advantage. There was no reciprocal advantage to the
owner prohibited from using his oil tanks in 248 U. S. 248
498; his brickyard, in 239 U. S. 239
394; his livery stable, in 237
U. S. 237
U.S. 171; his billiard hall, in 225 U. S. 225
623; his oleomargarine factory, in 127 U. S. 127
678; his brewery, in 123 U. S. 123
623; unless it be the advantage of living and doing business in a
civilized community. That reciprocal advantage is given by the act
to the coal operators.