In Re Kelso

ANGELLOTTI, J.

Petitioner seeks his discharge from the custody of the sheriff of the city and county of San Francisco, by whom he is held under a commitment issued upon a judgment pronounced against him upon conviction of a violation of an ordinance of said city and county.

The prohibitory portion of said ordinance is as follows, viz.: “No person, company or association shall maintain or operate any rock or stone quarry within that portion of the city and county of San Francisco bounded as follows:” Then follows a description of a large portion of such city.

The complaint filed against petitioner simply charged him in the language of the ordinance with willfully and unlawfully maintaining and operating a certain stone and rock quarry within the limits designated, and undoubtedly alleged a public offense if the ordinance is valid. In this proceeding, we cannot of course consider the evidence given upon the trial of petitioner, or determine whether or not that evidence showed that he committed the acts charged against him. The adjudication of the trial court, and the affirmance of the judgment by the superior court, are conclusive upon that question here.

The only question presented for our determination is as to the validity of the ordinance.

We do not think that the ordinance can reasonably be construed as prohibiting an owner of land containing stone' or rock from making thereon such “proper and usual excavations . . . for purposes of construction,” as may be necessary. What is prohibited is the maintenance or operation of a “rock or stone quarry.” The term “quarry” is not properly applicable to the comparatively slight excavations on land made primarily for purposes of construction thereon, and not primarily for the purpose of disposing of the rock, or stone, or other material taken out. As defined by the lexicographers, it is similar to a mine, in the sense that the material removed, be it mere rock or stone or valuable marble, is removed because of its value for some other purposes, and in the sense that it is not removed for the purpose of improving

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the property from which it is taken. It is distinguished from a mine in the fact that it is usually open at the top and front (see Century and Standard dictionaries), and, in the ordinary acceptation of the term, in the character of the material extracted, but these distinctions are not material here. Webster defines a quarry as “a place, cavern or pit where stone is taken from the rock or ledge, or dug from the earth, for building or other purposes; a stone pit,” and in March’s dictionary, we find it defined as “a stone mine.” In its proper significance, this is what it really is. It is a place, generally open at top and front, from which rock or stone is extracted solely because of its value for use elsewhere, just as gold or other precious metals are removed from a mine, and “proper and usual excavations” made for construction purposes on the land to be improved do not fall within the term, “quarry.” There is therefore nothing in the contention that the ordinance is in conflict with the provisions of section 832 of the Civil Code, confirming the right of the owner of land “to make proper and usual excavations on the same for purposes of construction, on using ordinary care and skill, and taking reasonable precautions to sustain the land of the other, and giving previous reasonable notice to the other of his intention to make such excavations,” and subject to which right the coterminous owner is entitled to the lateral and subjacent support which his land receives from the adjoining land.