Altgelt v. Aue
Altgelt v. Aue
Opinion of the Court
This is an appeal from an order refusing a temporary injunction.
Appellant’s claim for the temporary injunction is founded upon an alleged grant of Leon Springs by Max Aue to George Plehwe, whose right appellant acquired by purchase, which right appellant alleged was being violated by appellees by using water from the spring for the purpose of operating a laundry. The evidence disclosed that some of the appellees were using 15 barrels of water from the spring each week for a laundry. The well is producing about 10 barrels of water an hour. Appellant has, without objection or interference, been permitted to use *607 all the water from the spring except the 15 barrels a week.
In 1854, Max Aue owned a tract of land, out of which he sold 108 acres by metes and bounds to George Plehwe on January 10, 1S54. On the portion of the tract of land not sold, but retained by Max Aue, was situated Leon Springs. This spring was near the boundary of the tract sold to Plehwe. In the deed from Max Aue to Plehwe, a right to use a running spring, admitted to be Leon Springs, is expressed in the following words:
“And I have further agreed to allow the said George Plehwe, his heirs or assigns, at all times, free access to and use of the running spring near his S. E1. corner in the remainder of the land.”
It is admitted that appellees have whatever right to the spring that Max Aue retained after executing the deed to George Plehwe. As suggested by appellant, the only question for determination is, What right to the running spring did the deed convey to Plehwe?
The acts of the parties, for a number of years after the conveyance, show that they did not understand the sentence to exclude Max Aue from the spring, for Plehwe merely used the spring to supply his ordinary domestic purposes and Max Aue used the bulk of the water for domestic purposes and for irrigation as he had previously done. This is accentuated by the suit between these original parties, which suit is cited by appellant. Max Aue contended he had merely allowed Plehwe a license to use the water and have access to the well, which license was revocable at his pleasure. The court determined, in so far as we are able to understand from the meager statement of that suit, that the right was not revocable; but did not undertake to determine the nature and the extent of the use. There seemed to be no dispute as to how much of the water Plehwe was to use nor for what purpose. No effort was made to deny Max Aue the right to use the water for domestic purposes nor for irrigation.
We are of the opinion that Aue’s lessee did not infringe upon the rights of appellant by the use of 15 barrels of water a week, and that the trial court did not err in its order refusing a temporary injunction.
Affirmed.
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