concurring. — I concur in the order denying a rehearing of this cause; but, as the latter part of the opinion heretofore filed is capable of misconstruction, I wish to explain that I do not understand it to decide that the largest augmented head of water to which the plaintiff is entitled is to be measured by a cumulation of his two-fortieths for ten days. Under the covenant of Stoneman the plaintiff’s predecessors had the right to demand water for irrigation as often as once in ten days, but they were not bound to take it that often; and, if it appears that the practice has been to take it at longer intervals and in correspondingly larger heads, and if it also appears that by so doing the plaintiff can irrigate to greater advantage and without laying an unjust burden upon the defendant, the plaintiff should be allowed to take the water in the manner most beneficial to him, and the defendant is bound to provide the means of discharging into the head of the ditch the larger augmented head required.