Dutton

This is an appeal by the plaintiff from a judgment against him in an action brought to recover three thousand five hundred dollars from the defendants alleged to have been due under the terms of a written contract between defendants and plaintiff’s assignors, F. N. Chaplin and Mittie M. Chaplin, his wife.

Mr. and Mrs. Chaplin and the defendants were owners of real property bordering on “Roaring River,” a slough separating Hammond and Van Sickle Islands, Solano County, California. The testimony disclosed that this slough is located near the place where the Sacramento and San Joaquin Rivers empty into Suisun Bay and is filled with fresh water when the water in the Sacramento and San Joaquin Rivers is high and with salt water during the time that the water in said rivers is low.» The original parties to the contract involved upon this appeal conceived the idea of creating a fresh-water reservoir in said “Roaring River” by placing dams at either end thereof. To effect this purpose they executed a contract of which the following portions are significant upon this appeal:

The plaintiff set out in his complaint the contract between his assignors and the defendants and alleged: “Tha¡t…