Dissenting opinion
McWherter, J.,dissenting. — -I feel impelled to disagree with the majority opinion. Supplementary to the opinion filed by me as chancellor in connection with the decree nisi refusing an injunction and the cases therein cited, I desire to submit the following:
We are construing a contract, namely, the grant of the right of way. The rights of plaintiff as the owner of the dominant estate and of defendants as the owners of the servient estate were inexorably fixed by the terms of the deed for the right of way executed and delivered by Mr. and Mrs. Gress in 1916. No court of equity has the power to enlarge or increase the rights which plaintiff acquired under the grant, nor diminish the rights of defendants as owners of the servient estate. The granting of the injunction prayed for would appear to be depriving defendants of a property right without compensation. Pennsylvania Coal Co. v. Mahon et al., 260 U. S. 393, supports this position.
The legislature passed the so-called Kohler Act of May 27,1921, P. L. 1198, in an attempt to remedy the situation prevailing in the City of Scranton and vicinity due to the subsidence of surface resulting from the removal of the veins of anthracite coal under that territory. The act was intended for the purpose of protecting the surface where the owners of the surface had not exercised the precaution to require sublateral support of the surface. The act forbade, in effect, the owners of the coal from so proceeding with their mining operations as to cause the caving in, collapse, or sub*212sidence, inter alia, of any public building, any street, road, or bridge, any track, roadbed, right of way, pipe, conduit, wire, or other facility used by a public service corporation or any dwelling used as a human habitation, factory, store, or place where human labor was employed, or any cemetery.
In Mahon et al. v. Pennsylvania Coal Co., 274 Pa. 489, plaintiffs, husband and wife, as owners of'a lot of ground in Scranton, filed a bill in equity for an injunction to restrain defendant coal company from taking out coal under their lot, the remedy of injunction having been expressly provided for in the act. The Attorney General of Pennsylvania, counsel for Scranton Surface Protective Association, counsel for the Scranton Water Company, and the City Solicitor of the City of Scranton, all appeared in behalf of the bill. The Common Pleas Court of Luzerne County declared the act to be unconstitutional. The Supreme Court of Pennsylvania held the act constitutional and Mr. Justice Kephart (later Chief Justice) filed a learned dissenting opinion. Mr. Justice Kephart pointed out that each of the owners of the surface had parted with the right to sublateral support of the surface by failing to make a reservation in their deeds; that each of them probably received a higher price for the coal by reason of there being no reservation, and that the granting of the injunctive relief asked for would be taking private property for public purposes without compensation. He further pointed out that, if the legislature desired to protect the surface from subsidence in the Scranton area, it was its duty to pay for the same and provide for adequate compensation to the owners of the coal who had an absolute right to mine without restriction. We quote from page 509 of his dissenting opinion:
“Since Jones v. Wagner, 66 Pa. 429, 435, decided in 1870, followed by Scranton v. Phillips, 94 Pa. 15, 22, and a long line of cases thereafter, this court has recog*213nized the absolute right to acquire, possess and protect property, including the right to make a reasonable contract in relation thereto; the right to create different estates in land, selling the sub-stratum, releasing the right to have the superincumbent estates supported or releasing the right of surface support; the right to mine all the minerals, even though it should result in the surface falling in. This court has said such contracts are non contra bonos mores, not prejudicial to general welfare and public policy, — that they should be recognized, and that all persons competent to contract should have the utmost liberty to do so. Based on these opinions (Adinolfi v. Hazlett, 242 Pa. 25, 27; Waters v. Wolf, 162 Pa. 153, 170; Godcharles v. Wigeman, 113 Pa. 431, 437; Graff Furnace Co. v. Scranton Coal Co., 244 Pa. 592, 596), constantly reaffirmed within the last fifty years, we have not only placed the seal of approval on such contracts, but have written our decisions into them.
“In Com. ex rel. v. Clearview Coal Co., 256 Pa. 328, under similar facts, this court refused to enjoin a failure to support a public school building or removal of coal thereunder. We there held that to grant the relief asked ‘practically takes such coal (as was necessary to support the surface) from defendant and vests it in the school district’, which ‘would, in fact, be taking of private property for public use without compensation, which the Constitution forbids.’ ”
The view taken in this dissenting opinion was adopted by the Supreme Court of the United States on appeal in Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, in an opinion written by Mr. Justice Holmes. Plaintiffs, Mr. and Mrs. Mahon, were the owners of a lot. Mr. Justice Holmes, in his opinion, not only decided the question of the rights of these two particular lot owners with respect to the coal company, but went further and held that even the public, with respect to *214streets and alleys, could not compel private owners of the underlying coal to support the surface without compensation. We quote from his opinion (p. 415) :
“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 shortsighted 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, 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. ... 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 [43 L. R. A. 832, 70 Am. St. Rep. 298, 52 N. E. 747, 5 Am. Neg. Rep. 367].”
In the instant case, the chancellor found that the public interest was involved by reason of the possibility of the interruption of service and that the safety of persons and property was involved by reason of the danger of leakage, but, nevertheless, refused the injunction. We feel that this view corresponds with the *215view taken by the Supreme Court of the United States in Pennsylvania Coal Co. v. Mahon, supra, and that plaintiff gas company is in exactly the same position as the owners of surface in the subsidence area in the vicinity of Scranton. Plaintiff was too shortsighted to protect itself against the contingency here presented. Plaintiff, at the time it purchased the right of way in 1916, could easily (possibly with an additional consideration passing to the grantors) have protected itself by purchasing additional rights. The contract could have been drawn so as to prevent the grantors from adding a foot, a yard, or any stipulated depth of additional coverage. It failed to take such precaution. As pointed out by the chancellor, with modern excavating machinery ditching operations can readily be pursued to a great depth, greater than the fill here involved. Since plaintiff failed to purchase from the owners of the servient estate their right to place additional coverage over the natural terrain, it cannot now complain because defendants propose by the filling operations to exercise a right with which they never parted. Defendants still have the right to fill in their land for their own purposes, for their own material advantage, and for the commercial exploitation of their own property and to proceed with the fill.
Plaintiff, when it secured its certificate of public convenience, acquired certain rights of a monopolistic nature. In connection therewith, a duty devolves upon it as a public utility to go to such expense as may be necessary to guard against the interruption of service. It cannot use the power of a court of equity to pass the burden of that expense to someone else, in this case the defendants.
A court of equity cannot do that which the Supreme Court of the United States has said the legislature, in the exercise of its police power, cannot do. The legislature' cannot deprive individuals of private rights *216without compensation; neither can a court of equity by the exercise of the power of injunction. Plaintiff has the privilege of instituting an eminent domain proceeding for the condemnation of any additional' privilege it feels it needs, and a court of law would then pass on whether it is, or is not, entitled to the appropriation of an additional interest in the land which defendants still possess. It cannot deprive defendants of their right to grade their land without paying for the surrender of that right..
I believe the exceptions should be dismissed and the decree nisi refusing the injunction should be made absolute.