260 U.S. 393 (1922)
In 1878 the Pennsylvania Coal Company executed a deed that conveyed the surface of property but reserved in express terms the right to remove all the coal under the same.1 The grantee took the premises with the risk and waived all claim for damages that might arise from mining out the coal.2 The plaintiffs claim under this deed.3
On May 27, 1921, the Pennsylvania legislature approved the Kohler Act.4 The statute forbids the mining of anthracite coal in such way as to cause the subsidence of any structure used as a human habitation.5 The statute provides exceptions for 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.6
The plaintiffs brought a bill in equity 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.7 The Court of Common Pleas found that if not restrained the defendant would cause the damage to prevent which the bill was brought.8 It denied an injunction, holding that the statute if applied to this case would be unconstitutional.9
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.10 It held that the statute was a legitimate exercise of the police power and directed a decree for the plaintiffs.11 A writ of error was granted bringing the case to this Court.12
As applied to this case the statute is admitted to destroy previously existing rights of property and contract.13 The case involves a single private house.14 The statute ordinarily does not apply to land when the surface is owned by the owner of the coal.15 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.16
The statute purports to abolish what is recognized in Pennsylvania as an estate in land.17 The question presented concerns mining of coal under streets or cities in places where the right to mine such coal has been reserved.18
Whether the Kohler Act can be sustained as an exercise of the police power so far as it affects the mining of coal under streets or cities where the right to mine such coal has been reserved?19
No. The Kohler Act destroys previously existing rights of property and contract under the 1878 deed executed by the Pennsylvania Coal Company by forbidding mining that causes subsidence of structures used as human habitations.22 As applied to this case the statute is admitted to destroy those rights.23 The case involves a single private house where the damage is not a public nuisance even if similar damage occurs elsewhere.24 The statute ordinarily does not apply when the surface is owned by the coal owner.25
The Kohler Act cannot be sustained as an exercise of the police power so far as it affects the mining of coal under streets or cities where the right to mine such coal has been reserved.26
Related opinions on this issue
Justice Brandeis dissented on the ground that every restriction upon the use of property, imposed in the exercise of the police power, deprives the owner of some right but is not a taking when imposed to protect the public health, safety or morals from dangers threatened.27 He maintained that the restriction here is merely the prohibition of a noxious use.28 The purpose remains public even if some private persons receive incidental benefits.29
The legislature may prohibit mining causing subsidence without compensation because the State does not appropriate the property but merely prevents a use interfering with paramount public rights.
Whether the extent of the diminution in value of property caused by the statute requires an exercise of eminent domain and compensation to sustain the act?30
Yes. The statute purports to abolish what is recognized in Pennsylvania as an estate in land that is a very valuable estate.33 To make it commercially impracticable to mine the coal has very nearly the same effect for constitutional purposes as appropriating or destroying it.34 The Court of Common Pleas and the Supreme Court of the State both recognized that the defendant had contract and property rights protected by the Constitution of the United States that the statute would destroy if applied.35
The extent of the diminution in value of property caused by the statute requires an exercise of eminent domain and compensation to sustain the act.36
Whether the public interest in preventing subsidence of a single private house warrants the destruction of the defendant's contract and property rights?37
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.38 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.39
No. The case involves only a single private house.40 The damage is not common or public.41 The extent of the public interest is shown by the statute to be limited since it ordinarily does not apply to land when the surface is owned by the owner of the coal.42 The very foundation of the bill is that the defendant gave timely notice of its intent to mine under the house.43
Personal safety could be provided for by notice rather than by destroying the reserved mining rights under the 1878 deed.44
The public interest in preventing subsidence of a single private house does not warrant the destruction of the defendant's contract and property rights.45