Opinion by
Head, J.,The opinion filed by the learned judge below fully states the facts out of which this controversy arises and strongly supports the judgment appealed from. It leaves but little for us to add save perhaps to emphasize the narrow limits within which lies- the controlling question in the case.
We may assume with the learned counsel for appellant that many of the municipalities in what is called the anthracite region of the state are vitally interested in the broad question discussed with much ability in his brief. We may so assume not only because of our general knowledge of the history of the growth and development of those communities, but also because the legislature by the Act of July 26, 1913, P. L. 1439, has undertaken to provide a plan intended to solve or aid in the solution of that question. But in the case before us the city appellant has not attempted to avail .itself of the provisions of that statute. Manifestly then it has no place in the determination of our question, and it would be futile, as well as mischievous, here and now to attempt to construe that act or consider- the constitutional powers of the general assembly in dealing with such matters.
Nor need we enter into any exhaustive discussion of the nature or extent of the police power of the state or its agent, the city, over the regular highways of the commonwealth within or without the limits of a municipality. The continued existence and just- exercise of *643that power are necessary to the maintenance of the life of the state, and consequently can never be abridged. We may agree too that great public emergencies may arise when the just and necessary exercise of that power may involve the destruction of the property of the citizen. Such conditions, fortunately rare, demand the exercise of that force we call vis major, against the destructive effects of which, government has not yet found a way to relieve the citizen. But it has not been considered that the ordaining, laying out or opening of a public street in a city or borough created any such emergency. They are but the ordinary functions of every municipality, great or small, the exercise of which is the daily incident of their development and growth. For the performance of these functions they are given ample power. But this power is to be exercised subject to the provision in the fundamental law that “municipal and other corporations invested with the privilege of taking private property for public use shall make just compensation for property taken, injured or destroyed by the construction or enlargement of their works, highways or improvements, etc.” Thus the streets necessary for the common good and the communal growth may be created, and the property required to make and maintain them may be taken from an individual by due process of law and without injustice to anyone.
These general reflections are but intended to clear the way for an accurate view of the basic proposition on which our judgment rests, viz., that what is known in this record as “Robert’s Court” is not and never was a public street of the city of Scranton within the legal meaning of the ordinance under which the defendant was convicted, when that ordinance is construed in the light of the statutes and decisions relating to public streets and highways. Of course by its acceptance- of the dedication by the owners of the surface and its subsequent expenditure of public money thereon, the city has lawfully acquired the right, for many pur*644poses, to regard Robert’s Court as a public street, and its control over it is commensurate with that right. But the stream cannot rise higher than its source. That right had its origin in the deed of gift from Reynolds & Porter. They never owned the underlying coal. When the owner of the fee split his estate horizontally and sold to them the surface, they, for a valuable consideration, expressly released for themselves and their assigns the right of surface support. After the conveyance to them, the owner of the coal could lawfully mine and remove it just as before the severance. Nothing they could do would be effective to control, interfere with or disturb that right. They could give away their own property but not that of another. Their donee could take what they could give but no more. This would be none the less true because the donee was a city rather than an individual. By its acceptance of that gift, the city did not acquire any control over the property of one who did not join in the deed of gift, and its police power over the property of that person was neither greater than nor different from what it had theretofore been. Because of that gift it could not so exercise its police or punitive power as to restrain the lawful enjoyment of his own property by one who had never joined in the deed of gift; to whose land the actual donors never had any title.
Without attempting to determine how far, either under the exercise of its general police power or under the provisions of the act of 1913, the city of Scranton may lawfully regulate the mining of coal under the surface of its regularly ordained streets, we reach the conclusion that this defendant, conducting the ordinary mining operations of his employer under the surface of Robert’s Court, was guilty of no violation of the city ordinance, and the judgment in his favor was properly entered.
Judgment affirmed.