Previously, I wrote about the majority opinion in Mahon, authored by Justice Oliver Wendell Holmes, Jr. In short, Justice Holmes wrote that private property could be regulated to a “certain extent”, but that if that regulation went “too far” it would constitute a taking. Subsequent history has taught us that the Supreme Court has read this to mean that all value has to be taken through regulation in order for a taking to exist. We’ll revisit this point when we move into later twentieth century regulatory takings cases. Today, though, I will discuss Justice Brandeis’s response to Justice Holmes’s opinion.

Brandeis was the lone dissenter in this case. His decision has two elements that I find particularly interesting: first, instead of discussing specific “estates” in the land (an “estate” meaning, a legal interest), Brandeis was interested in the way owners “use” the land and how those uses could be regulated; and second, he was interested in the way the state’s police powers should apply in the case. The two go hand-in-hand in his view.

Use of land, he points out, is something the government (in this case, the Commonwealth of Pennsylvania) has always been able to regulate. Use by an owner is never absolute. That is to say, because you own land does not mean you can use it however you want. For example, an owner may not create a public nuisance with his land. An example of this would be someone placing a ton of scrap metal on their land or dumping chemicals on it so that the water table is poisoned, and all the land adjacent to their tract was devalued or damaged because of their activities. Brandeis also notes that “uses, once harmless, may, owing to changed conditions, seriously threaten the public welfare.” I think contemporary examples of this would include believing that a chemical was harmless and then learning that it is linked to cancer or some other disease. Brandeis argues, in essence, that when new information (including new science) comes to light the government can step in for the good of the public and create regulations addressing the problems.

Now, keep in mind that this is a case about a state level statute, so Justice Brandeis’s remarks are focused on the state police power. His argument is that if the state is legitimately exercising its powers to legislate on behalf of the health, safety and morals of its citizen (which are powers given the states in the federal constitution), then they do so without having to pay compensation. The only time they would be required to compensate is if the state were to exercise their power in such an arbitrary manner as to violate the 14th Amendment’s due process clause and, through it, the Takings Clause of the Fifth Amendment. Brandeis explains that all restrictions on the use of property ultimately deprive an owner of something he or she may have enjoyed before the restriction was written. He writes,

“deprives the owner of some right theretofore enjoyed, and is, in that sense, an abridgment of 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…”

Such a restriction must have the purpose of protecting the public for it to be a legitimate exercise of police powers, wrote Justice Brandeis. This point is important because the statute that was in question in Mahon had included provisions that restricted undermining in areas used by the public even though this case involved private owners. Brandeis believed that just became the Mahons were private owners, the statute should apply to their land just as it did to public lands.

Justice Holmes, in his majority opinion, seems to have mostly ignored the portions of the statutes that dealt with public areas, paying more attention to the fact that in this specific case the land was privately held and not used by the public. Moreover, the Mahons had been given notice by Pennsylvania Coal to expect their land to be undermined. Holmes believed that, because of the terms of the deed, notice was all that was necessary for the company to do if it wanted to mine the coal. If more needed to occur, in Holmes’s view the state should have exercise eminent domain and acquired the land rather than regulating it in such a way that caused the diminution of its value.

Brandeis, however, argued that “…a restriction imposed through exercise of the police power [is not] inappropriate as a means, merely because the same end might be affected through exercise of the power of eminent domain, or otherwise at public expense.” In his view, if this were the case, every restriction placed on property would be unconstitutional. Later in the opinion, he points out that Holmes’s theory that notice by the coal company was all that was required to ensure the safety of the Mahons (or anyone else living or working not the surface of land being undermined) was problematic. Brandeis believed that the state legislature, which possessed local knowledge concerning local conditions, had determined that such notice was not adequate to the protect the public safety. It was because local decision makers and tribunals would possess local knowledge that the police powers reside in the states, he said. Had they believed that notice by the coal company was enough, there would have been no need for the statute at all and the state supreme court would not have decided in favor of the Mahons.

On the issue of diminution of value, Justice Brandeis also disagreed with Justice Holmes. He explained that “values are relative”.  Relative to what? To whatever you’re comparing it to, he said. Brandeis argued that Justice Holmes had compared the value of what was lost (i.e., enough coal left in place to keep the surface from collapsing) by the Company against the wrong thing: “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 the 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 cannot be greater than the rights in the whole.” Here he points out that state governments were already regulating what occurred above ground to protect adjacent property owners. For example, buildings could not be higher than a certain number of stories in some cities so that those in lower buildings still had access to sunlight and fresh air. Brandeis, rather pointedly inquires why, given the constitutionality of such restrictions, should rights underground bar the State’s power to set regulations for public safety purposes?

In many ways, the disagreement between these two justices had to do with whether they trusted states to exercise their police power. For Brandeis, regulations for the health, safety and morality of the citizens were not only acceptable, but required in order for a society to evolve and function well. In 1922, Holmes’s skepticism of state regulation predominated his thinking. His view that eminent domain was the appropriate vehicle for accomplishing the goals of the state meant that Pennsylvania would have to condemn all the land that the mining companies wanted to undermine in order to accomplish the protection of individuals living on the surface. Even if the state could afford to do so, Holmes’s intention was to make the decision to end land subsidence a purely economic calculation rather than an issue of morality and safety.

Despite this disagreement, these two justices would, eventually, be united in many of their views, joining one another in dissent after dissent when their colleagues struck down federal level regulations in the 1930s. That said, in 1922, their arguments in Mahon — and the confusing tension in Holmes’s majority opinion — was indicative of the changing perspectives during the early part of the the century concerning police powers and regulation that would eventually lead to the 1930s battles between the US Supreme Court and President Roosevelt concerning New Deal legislation.

Today, this case may well be at the heart of the tension in regulatory takings cases, or at least its indicative of how that tension developed. The questions regulatory cases pose again and again include what land use regulations can government create without compensation, when must they compensate, and when should they use eminent domain to accomplish their goals? The answers the Court gives have never been fully satisfactory to anyone, but that may partly be due to the very different regulatory situations in which takings cases occur and the way a case-by-case analysis can make consistency in the law (and we like law to be consistent internally) all but impossible. In that regard, the most important insight in this case may well have been Justice Brandeis’s observation that regulation depends upon context and what was once viewed as a safe use may become unsafe (and therefore open to regulation), depending upon changing conditions. The value of the land, in other words, may not be the only thing that is relative.

Reading Pennsylvania Coal Company v. Mahon reminded me that building skyscrapers was not only a technologically awe-inspiring when they were first constructed, but also one that had ramifications for owners of property adjacent to the skyscrapers. One of these days, I will write a post about those cases and the connection between regulatory takings and public nuisance law.