Sternes

It appears from the complaint in this action that the appellants (husband and wife) are the owners of two tracts of land comprising about 200 acres situate in Sutter County, held and possessed by them as community property; that during the years 1919 and 1920 the respondent Canal Company entered upon both the said tracts of land and proceeded to excavate a canal, or ditch, of approximately fifty feet in width across parcel number one of the tracts of land owned by the appellants, and constructed levees along the side lines of said ditch approximately three feet in height above the natural ground, leaving the bed of the canal about two and one-half feet below the natural level of the surrounding country; that across parcel number two the width of the canal was about forty-six feet, with levees along the side lines, and the depth of the canal about the same as across parcel number one; that the lands belonging to the plaintiffs are adapted to *Page 739 the growing of grains, alfalfa, and practically all kinds of fruit trees; that the height of the water carried through the canal is above the level of the surrounding country; that during the irrigating season the water has seeped,…

It is earnestly contended by the petitioner herein that the court did not fully consider or *Page 745 perhaps did not give full weight to the fact that there were two agreements executed between Floyd G. Sternes, one of the plaintiffs in this action, and the Sutter Butte Canal Company, one of the defendants, and a large number of land owners. It is further contended that the agreement executed on the fifteenth day of September, 1919, provided that the land owners should pay for the rights of way. The petition states: "Let it be borne in mind that the agreement of September 16, 1919, provided that the land owner should furnish the rights of way," etc. If this interpretation of the contract were correct, the petitioner would be entitled to a rehearing, but is such an interpretation of the contract admissible? There are three references to the rights of way in the contract of September 15, 1919. They are, first, "And said second parties are willing and have agreed to advance to first party the cost of all such rights of way, construction, enlargements, ditches and works to be acquired and constructed as aforesaid." The second reference is: "The cost of construction of said ditch or…