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 ditches . . . and the cost of necessary rights-of-way . . . shall be borne and paid by the second parties, each of the second parties paying such pro rata of said cost as the area of his land set opposite his name bears to the total area, etc.; but said ditch or ditches . . . and said rights-of-way shall be the property of the first party, and the secondparties shall be entitled to reimbursement of said costs fromthe first party, without interest thereon, upon the conditionsand to the extent hereinafter specified."
The third reference to the right of way in said agreement reads: "The amounts deposited with the first party by the second parties to cover the cost of construction of said ditches and facilities and acquisition of rights-of-way above referred to shall be returned by the first party to said secondparties in accordance with its rules and regulations."
The agreement dated August 30, 1920, between the parties, does not alter the provisions of the original agreement as to who should pay for the rights of way, as will be seen by the opinion of the court filed herein, which quotes in full every word of the agreement of 1920 in reference to the rights of way, and as to the manner of payment therefor, *Page 746 which shows that the burden is squarely fixed upon the Canal Company.
It is further contended by the petitioner that the plaintiffs herein have waived reimbursement, but the agreement of 1920 upon which such claim is based does not bear out the contention. After having provided for the rights of way as herein stated, the agreement next sets forth that the land owner shall pay the sum of twenty dollars per acre, aftercrediting said party with such amount as he or she may beentitled to for the right of way granted by him or her to thefirst party. And then as to the payments made by the land owner, after such credits are allowed, the contract does contain a waiver in the following language: "Said parties making said payments shall not be entitled to reimbursement or return by the first party of any part of said payments, or of any part of said advance heretofore made by the second parties, any right of reimbursement or return thereof being hereby expressly waived and relinquished. Said parties also hereby waive and relinquish any right to claim any part of any sums of money which may be hereafter received by the first party from any other person for or on account of the construction of said ditches or other irrigation facilities, or of the costs of rights-of-way therefor." This is not a waiver of any credit which it is previously expressly provided in the contract shall be given to the land owner as compensation for any right of way granted by him. It is only a waiver of any right to demand a return of any money which he may have paid after receiving the credits to which he may be found entitled. It is true that there is nothing said about consequential damages, or what shall be considered in determining the reasonable price to be paid by the Canal Company to the land owner by way of credits, and for that very reason the court must look to the authorities to ascertain what is included within such language, and this we have fully set forth in our previous opinion herein.
Since the writing of our first opinion herein the appellate court of the first district, in the case of Rockridge Place Co. v. City of Oakland, post, p. 791 [216 P. 64], opinion filed April 27, 1923, has thoroughly considered the question of waiver or estoppel when applied to one's constitutional right to compensation when property is taken for a *Page 747 public use. It is there held that it is no bar to a claim for damages that the petitioner was one of the original petitioners for the improvement; that a waiver is not to be implied from the fact that the petitioner asked the improvement. The language of the court there used, and which is pertinent here, is: "A constitutional right may not be so lightly waived. There is nothing whatever in the petition, nor in the conduct of the appellant as disclosed by the record, which evidences a purpose on his part to waive his constitutional right to claim damages to his property, caused by raising a grade of the street." This is the language of the case of Robinson v. City of Vicksburg,99 Miss. 439 [54 So. 858], quoted with approval by the appellate court.
With the amount of damages claimed, this court has nothing to do, hence the argument of petitioner based upon such figures as to what other property owners might claim need not be considered. The question at issue is not the amount — it is the right to make proof of the compensation to which the plaintiffs are entitled for and on account of the right of way taken by the Canal Company, and the incidental damages to their property alleged to have been caused thereby.
Another reason why a rehearing should not be granted herein, and why the appellants are entitled to a new trial, and which was not touched upon in our previous opinion, is to be found in paragraph V of the plaintiffs' complaint. It is there alleged that said defendant (Canal Company), in constructing said canals and ditches "willfully, unlawfully, needlessly, and wantonly damaged, injured, and destroyed plaintiffs' land, and cut the same up into small parcels against the protests of the plaintiffs, when defendants could have at all times herein mentioned before the construction of said canals and, as said defendant well knew, built said canals and ditches in such a manner and in such a location as to have caused the plaintiffs far less damage and injury; and that plaintiffs did not and have never consented to the construction of said canals and ditches at the places and in the manner herein described, and that said defendant, acting as such public utility and as such public service corporation, took more of said land of plaintiffs than was reasonably necessary for public use, and that said canals were not located and built by said company in a manner most compatible with the public good and the least private *Page 748 injury. . . ." And then followed by the allegations of the complaint referred to in our previous opinion, which state a cause of action and present issues upon which the plaintiffs were entitled to introduce evidence.
The language of the agreements is not ambiguous; as we have shown by quoting therefrom, they are very clear and explicit, and we have omitted no part which would in any way change the construction which has been given upon the questions involved herein. Upon the question of rights of way and compensation therefor, both agreements are practically the same and have been considered together.
For the reasons stated in our first opinion herein, and the additional ones above stated, the petition of the defendant Sutter Butte Canal Company for a rehearing in this cause is hereby denied.
Finch, P. J., and Burnett, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on June 21, 1923.
All the Justices present concurred.