Mayberry

A rehearing of this cause was ordered after decision in Department. We refer to the Department opinion for a statement of the facts to he considered, and we adopt its conclusions, except upon one point.

With respect to the rights of the parties to the use of the *446 water artificially developed by the defendant, we think the contract of 1860 (quoted in full in Alhambra, etc. Water Co. v. Mayberry, 88 Cal. 68 ) requires a construction more favorable to the plaintiff than was placed upon it by the superior court and by the Department. When Kewen and Wilson entered into that contract, the possibility of developing in the future water in addition to that then flowing in the canada was one of the circumstances by which they were surrounded, and there is nothing in the terms of the contract to denote whether they did, or did not, take it into consideration. If, therefore, the defendant, by causing the water which it has developed to flow through the aqueduct which it maintains across the Kewen land, has brought such water within the literal terms of that clause of the contract which entitles the plaintiff to use on two days of the week “the water flowing in any water ditch, flume or…