The herald., 1898-12-04

Ocean View avenue, which is a street run
ming diagonally from northeast to south
west northerly from Westiake park, is To-
Gated approximately on the summit OF a
ridge, and from Ocean View avenue south
erly to Westlake park the slope OF the land
is quite rapid downward to Westlake park,
and from Ocean View avenue northerly the
slope of the land is at first gradual and then
abrupt towards and into a deep gully,
which runs approximately in an irregular
manner in westerly and southwesterly di-
rection, following approximately the line
OF said l60Ofoot limit fixed by the ordi-
nance.
The well in controversy is situated on
lot II, in block B, of the Mob Hill tract,
northerly from Ocean View avenue and
westerly from San Joaquin street. The in
tersection OF Ocean View avenue and San
Joaquin street is 35S feet above the sea.
The point where said well is situated is
from seven to ten feet lower than the inter
section OF the aforementioned streets, there
being gradual and Uniform slope down
ward OF the land from Ocean View avenue
northeriy to said well, and still farther
northerly and westerly the surface OF the
land slopes rapidly into the gully men
toned.
From the natural slope of the land, as
well a. from the grades of the streets in
that locality (as shown by the may filed in
this case), it is physically impossible for
the drainage from the land situated on the
slope northery from Ocean View avenue to
drain into Westlake park. 1t is on this
northerly slope that the trend of what is
ii lo1t % f,lI Il Il
the exception of four residences situated at
the highest part of this slope on Ocean
View avenue near Dora street, all Of this
northerly slope and large tract of land
northerly from the line of said l6OOfoot
limit, including said gully, is wholly unin-
habited land considerable portion of it
seems almost untitled for residence pur-
poses.
"It will thus be seen that while the pur-
pose of the ordinance is to protect said
Westlake park from the drainage from the
oil wells, the prohibition within the district
north of Ocean View avenue does not con-
duce in any degree to the protection of the
park in this respect.
at is apparent that the ordinance is ar
bitrary and unreasonable in fixing the limit
at 1900 feet, regardless of the Typographical
features of the locality. To thus prohibit
| the owner of the land from using his prop
erty by extracting the oil therefromiby an
ordinance ostensibiy adopted for the pur-
pose OF protecting the park from the drain
age of oil wells while such considerable
portion OF the territory included in the lin.
its fixed does not, and could not, drain into
the park, must appear to the most casual
observer to be an unreasonable, unjust and
unnecessary restriction.
MANY other objections to this ordinance
have been pointed out by counsel, but mas
much as the ordinance is subject to this
serious constitutional objection, l have not
deemed it necessary to give any opinion re.
garding them. In my judgment, for the rea-
sons stated, the ordinance is unconstitution-
al and void
The verdict was that the defendants were
not guilty and both were discharged.
BY this decision the first victory lies with
the defendants, who are in reality w. E.
De Groot and those who may be associated
with him. The city, however, will appeal
the case, and it is probable that it will be
carried to the supreme court before it will
have been definitely settled.