Bean

This is an action to recover damages for a failure to furnish water for irrigation, whereby it is alleged the orange and other trees, corn, and vegetables of the plaintiff were injured or destroyed. A jury trial was had, and resulted in a verdict for plaintiff for the sum of four thousand five hundred and eighty dollars. Defendants moved for a new trial, which was denied, and this appeal is from the judgment and the order denying a new trial.

*51 In 1873 the defendant, George Stoneman, was the owner of a ranch then and now known as the “Stone-man ranch,” upon a portion of which were springs and water sources, the waters from which were collected in a reservoir constructed upon the ranch, and from which the water or a portion of it was conducted through a ditch for the purposes of irrigation. In March of that year he sold and conveyed to Barrows and Furrey eighteen acres of land, part of said Stoneman tract, together with a certain portion of the waters arising upon the unsold part of the ranch. The covenant contained in the deed relating to the water right is as follows:

At the date of this conveyance the parcel sold was not improved, but the ditch above mentioned was…

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.