Upon motion for rehearing. It is possible that upon the evidence this court was not fully justified in asserting, as it did in the opinion, that defendant’s failure to obtain the quantity of water and all of the power granted to it by the lease was due to an insufficiency for both Kirk and itself. But in the fourth subdivision *177of tlie reply plaintiff admits the leasing of power and water to Kirli, alleges that be has entered into possession of tbe same, and “has since continued to operate, control, and use the same.” Again, in the same subdivision, it is alleged that the quantity of water used by Kirk under his lease is the same, and not in excess of the quantity excepted and reserved from the grant to defendant. The theory of the entire reply to the counterclaim is that Kirk was entitled to use the water and power leased to him at all events, and in disregard of defendant’s lease; not that for a time he failed or omitted to use any water whatsoever, and hence that he did not interfere with defendant. As we construe the reply, the point raised by Kirk’s testimony that he did not use any water in the winter of 1880-90 was not in issue; and from the entire record, including the “note” of the trial judge, it seems plain that it was taken for granted upon the trial that the defendant’s supply was reduced below the amount it was entitled to have by the use of water at Kirk’s mill. For these reasons, if for none other, the motion must be de-Inied.