Pennsylvania Coal v Mahon 260 U.S. 393 1922

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Pennsylvania Coal v Mahon260 U.S. 393 (1922)
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The Kohler Act of 1921

• Pennsylvania law that
• Forbid coal mining that would result in
  subsidence under structures used by the public.
• In effect, act required a pillar of coal to be
  left under structures, streets, etc.

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Why enacted?

• Before say 1900, coal was mined by the room and
  pillar method.

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Why enacted?

• Before say 1900, coal was mined by the room and
  pillar method.
• Enough pillars were left to support the surface.
• This was not to be a good neighbor
• This was to get the miners and equipment out
• But . . .

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• The technology and economics of coal mining
  changed
• More of the coal could be removed
  technologically and
• The price of coal put pressure on maximization of
  yield, so some
• Companies were remining previously mined
  shafts, removing some of the pillars.
• So . . .

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• Now the support only had to last long enough to
  get the miners and machinery out.
• Subsidence followed.
• The Kohler Act followed subsidence.

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Background

• 1878 Mr. Mrs. H. J. Mahon bought the property
  during the earlier room pillar method.
• The property was sold with the express
  reservation of the right to remove coal under the
  property.
• The grantee took the premises with that risk and
  waived all claims for damages that may arise from
  the mining out the coal.

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State Court

• After receiving notice of their intent to mine
  under his property, Mahon filed suit pursuant to
  the Kohler Act to enjoin Penn Coal from removing
  supports the pillars under his property,
  thereby causing subsidence of the surface.
• Injunction was denied but then reversed by the
  Pennsylvania Supreme Court.
• State court action was appealed to the US Supreme
  Court.

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A new concept of takings

• Justice Oliver Wendell Holmes wrote the opinion.

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Holmes observations

• 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 limit . . .
• . . . One fact for consideration in determining
  such limits is the extent of the diminution.

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• When it diminution 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.

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The Holmes Rule

• 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.
• How far is too far?

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• 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.
• . . .
• 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.

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Brandeis Dissent

• A restriction imposed to protect the public from
  danger is not a taking.
• The restriction imposed is merely the prohibition
  of a noxious use.
• If mining were to set free a noxious gas, state
  could prohibit it without payment.
• Why not also a mining practice that constitutes
  a danger?

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The denominator

• Holmes addresses the extent of the diminution.
  He sees it as an indicator of the requirement to
  pay compensation.
• But, the diminution of what?
• The total ownership, or
• The regulated property?

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Under the Kohler Act

• Could mine without restriction
• In areas with no habitable structures, or
• In areas with no public improvements, or
• In areas when the same entity owned both surface
  and subsurface rights.
• Could mine under restricted areas if supporting
  pillars remain.

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Extent of diminution

• In above, 10 of coal affected by requirement, so
  . . .
• Diminution to total ownership 10
• Diminution to regulated land 100
• Holmes did not elaborate on this matter, but he
  clearly is focusing on the extent of the
  diminution in value of the regulated land.