The true construction of a written contract is the question for determination in this case. It was entered into August 17, 1898, between the San Joaquin & Kings River Canal & Irrigation Company, a corporation, as party of the first part, the California Pastoral & Agricultural Company, a corporation as party of the second part, and Miller & Lux, a corporation, as party of the third part.

Inasmuch as this contract refers to and makes a part of it a previous contract of date August 11, 1871, between William S. Chapman, party of the first part thereto, and Henry Miller and Charles Lux, parties of the second part thereto, the provisions of that previous contract enter into and bear upon the true meaning of that governing the parties here, who are: (1) The successors in interest of William S. Chapman, were complainants in the court below and are appellees here, and, for convenience, are referred to by counsel and in this opinion, as the pastoral company; (2) the successors in interest of Plenry Miller and Charles Lux, defendants and cross-complainants in the court below and appellants here, and, for convenience, referred to as Miller & Lux; and (3) the San Joaquin & Kings River Canal & Irrigation Company, defendant and cross-complainant in the court below and appellant here, and referred to by counsel, and by us, as the canal company.

Certain waters of the San Joaquin river constitute the subject-matter of the suit, and, to the end that a better understanding of the controversy may be had, we here insert a diagram found in one of the briefs for the appellants, which the record shows to be a correct representation of the premises with one exception, which is this: The slough marked on the diagram “Lone Willow Slough” extends, as a matter of fact, to its connection with the river at the point marked upon the diagram “Headgate,” so that the indication upon the diagram *463 that the artificial Chowchilla Canal extends from the point marked thereon “White House Headgate” to the point on the river marked “Headgate” is erroneous. The diagram is as follows:

The contract of August 11, 1871, omitting such parts as are not here pertinent, is as follows:

Indorsed on the foregoing agreement of August 11, 1871, is the following:

Since the earlier contract is expressly made a part of the later one, it is manifest that the two must be read and considered together, and that in order to ascertain the true meaning of the parties we must first get a clear understanding of the first, and then bear in mind the purpose of the second.

Looking, then, at the agreement of August 11, 1871, we find therein an express recognition by all parties thereto (Chapman and Miller & Lux) of whatever rights the canal company had. Those rights were in the contract of August 11, 1871, wholly undefined; but, such as they were, they were recognized and acknowledged by Chapman and Miller & Lux in and by this clause in their agreement:

Llaving thus acknowledged the paramount, although indefinite and uncertain, rights of the canal company, Chapman and Miller & Lux proceeded, in and by the instrument of August 11, 1871, to agree to jointly dig and construct through the lands of Miller & Lux a canal for irrigation, from the point where the Lone Willow Slough makes out from the San Joaquin river and near the center of the dividing line between sections 2-1- and 25 (indicated on the diagram), and thence running in a northerly direction to the north line of the most southern tier of sections in township 12 south, range 15 east, from the Mount Diablo base and meridian; the canal to be 25 feet wide and to be so constructed as to carry a depth of 1% feet of water. The agreement further expressly provided for the use of the slough as a part of the canal as far as should be deemed advisable by the respective parties thereto, and the case shows that they did deem it advisable to use and adopt the slough as a part of the canal from the point where it leaves the river down to the point marked “White House Headgate,” where the artificial part of the canal constructed by Chapman, on the one part, and Miller & Lux, on the other part, at their joint and equal cost, commences. The agreement of August 11, 1871, contains nothing whatever to indicate the quantity of water the respective parties contemplated diverting and appropriating thereby from the river. Indeed, in that respect, the provisions are about as uncertain and indefinite as that in respect to the acknowledgment of the paramount rights of the San Joaquin & Kings River Canal Company. But the agreement of August 11, 1871, does expressly provide that Miller & Lux shall have the right to construct and put in at their own expense all side gates and other works they may require for taking out water from the joint canal at any place between *466 the point where the slough makes' out from the river, to the north line of the most southerly tier of sections in township 12 south, range 15 east, Mount Diablo base and meridian, and that by means of such side gates Miller & Dux, and their assigns, should have the right to draw from such joint canal, without charge, and use and dispose of, one half of the water flowing therein, and that Chapman, and his assigns, should have the right, also without charge, to take out at the northerly end of said joint canal, and to use and dispose of, the remaining half of such water, “and to carry the same further on by another' canal or other canals, to be used as he may see fit, and, further, to enter upon and go on the land of said parties of the second part, with men and teams, over which said canal may pass, for the purpose of repairing the said canal, at any time, doing as little damage as is possible thereby.”

These provisions of the contract of August 11, 1871, are too plain to admit of controversy concerning them. They show, among other things, that Miller & Lux, and their assigns, were entitled thereby to tap the joint canal, by side gates put in at their own expense, at any place between the point where the slough made out from the river, and the north line of the most southern tier of sections in township 12 south, range 15 east, of the base and meridian mentioned, and to take from the canal, for their use and disposal, one half of the water flowing therein, whatever the quantity should be, with the right on the part of Chapman, and his assigns", to take at the north end of- the canal, the remaining half of such water, and use and dispose of the same, with the additional right in Chapman, and his assigns, to extend such use by the construction of other canals in the lands of Miller & Lux.

Since the sole purpose of appropriating and diverting water for irrigation is the beneficial use of it upon land, it is manifest that convenient places for such diversion are of great, and often (depending upon the location of the land upon which the water is to be used) of controlling, importance. The places designated in the agreement of 1871 for the taking, by the respective parties thereto and their respective assigns, from the joint canal, of their respective moities of the water flowing therein, were therefore of the gist of the agreement.

The case shows that, in timej disputes arose concerning the waters in question, which resulted in the agreement of August 17, 1898, which latter agreement recites not, as we understand, what “must be taken to be the construction which had been placed on the contract of 1871 by the parties thereto,” but, on the contrary, expressly recites that “differences have arisen between the parties hereto as to the rights of the said parties of the first (San Joaquin & Kings River Canal & Irrigation Company), second (The Pastoral Company), and third (Miller & Lux) parts hereto, to take water from the said San Joaquin river, and also as to the-amount of water they are each entitled to take and receive from the said river, and as to their priorities in such water,” and that it is entered into “for the purpose of settling and adjusting said differences as between the parties hereto.” This latter agreement further expressly recites that “Miller & Lux *467 are the owners of and entitled to take and receive all the water now flowing or that may hereafter flow in the said slough through which said Chowchilla Canal now takes and receives its water, after the full amount of water which said Chowchilla Canal is entitled to receive through such slough is supplied to and received by and into its said canal, at the Headgate and Weir hereinafter referred to,” and that “the party of the first part hereto, the San Joaquin & Kings River Canal & Irrigation Company, is the owner of canals which are taking water from the said San Joaquin river, and are entitled to take and receive water from said river into said canals.” After making these express recitals, the parties to the contract of August 17, 1898, proceeded to provide and agree, among other things:

It will be'at once seen that there is much repetition and confusion in the supplemental contract of August 17, 1898, but we think it not difficult to discover therefrom the real meaning and intent of the respective parties thereto. First and foremost is the fact that the agreement of August 17, 1898, is supplemental to that of August 11, 1871, and that the latter, it is therein expressly declared, “shall remain in full force and effect, except in so far as modified by this supplemental agreement; provided that the water at any time flowing in said •Chowchilla Canal shall be equally divided between the parties of the second and third parts by actual measurement made at the point where said party of the third part is, at that time, diverting water from said canal. If the said party of the third part desires to divert water at more than one point on said canal at the same time, then such measurement shall be made at each of such points, so that said party of the third part shall receive at the second or any subsequent point only such proportion of the water then flowing at such point as, when added to the proportion of the water diverted by it at prior points, shall equal one-half.”

Next, it is to be observed that all parties to the supplemental agreement expressly declare, in more than one place, that the canal company has the prior right to 775 cubic feet per second of the water ■of the river, after which the pastoral company and Miller & I*ux are *469 jointly entitled to take, when there is so much left in the river, 120 cubic feet of the water through and by means of their jointly constructed and owned Chowchilla Canal. In two places in the supplemental agreement, recognition is made of rights of Miller & Lux in and to such water as may flow in the river, and in the slough, after the 775 cubic feet have been taken by the canal company, and the 120 cubic feet by the pastoral company and Miller & Lux jointly. In respect to such excess of water flowing in the river, the provision is:

And in respect to such excess flowing in the slough, the provision is:

We do not overlook the conclusion reached by the learned judge of the court below that the words “the said party of the second part,” of the last-quoted clause of the agreement, were inserted by clerical mistake for the words “the Chowchilla Canal.” We cannot so regard them. The words, as they appear in the agreement, are in accord with what we conceive to he the true meaning and intent of the contract, taking it by its four corners. Precisely the same words, “the said party of the second part,” were inserted in clause 4 of the agreement to secure to the pastoral company rights to water for its stock in the event of a shortage of water.

It is not contended that there is any express provision in the supplemental agreement taking away the express and valuable right the contract of 1871 conferred on Miller & Lux to take their just proportion of the waters in question from the Chowchilla Canal at any place or places they should desire, between the point where the slough makes out from the river to the north line of the southern tier of sections hereinbefore mentioned, and not only do we fail to discover from the language employed by the parties any indication of any such intent on their part, but we are unable to see how the denial of that right to Miller & Lux would result in any substantial benefit to the pastoral company, for surely no one will claim that Miller & Lux have not the right to take their half of the 120 cubic feet, or of whatever part of the water of the river may be left after the prior right of the San Joaquin & Kings River Canal Company .is satisfied, from the Chowchilla Canal immediately after the water passes the White House Headgate and enters the artificial part of that canal. In what way the pastoral company can be any more injured by the taking by Miller & Lux of their proportion of the water immediately before it passes that gate it is difficult to see. However that may be, we are of the opinion, for the reasons stated, that reading the two agreements together, as they must be read and considered, Miller & Lux are entitled to take, at their own expense, their proportion of *470 the waters in question from- the Chowchilla Canal at any place or places they may desire, between the point where the Lone Willow Slough makes out from the river to the north line of the most southern tier of sections in township 12 south, range 15 east, of the Mount Diablo base and meridian. '.

The case is remanded to the court below, with directions to modify the decree in accordance with the views above expressed; the appellant to recover the costs of this appeal, the costs of the trial in the court below, and those hereafter to be incurred in that court to be apportioned as the court below may deem equitable.