
    OTTO NEINABER v. THE TOWNSHIP OF WEEHAWKEN AND THE BERGEN TURNPIKE COMPANY.
    Submitted December 5, 1903
    Decided February 23, 1904.
    A declaration, in an action to recover for damages to the property of the plaintiff by surface water escaping from a broken sewer, which charges that defendant failed to keep in repair a wall along the turnpike so as to prevent the escaping water from flooding plaintiff’s premises, will not be sustained on demurrer, it failing to show that the turnpike company was under any obligation to the plaintiff to keep the wall in repair. The mere allegation that such a duty existed, without setting forth such facts as show the existence of the duty, is not sufficient.
    On demurrer of Bergen Turnpike Company to declaration.
    Before Gummere, Chief Justice, and Justices Dixon, Hendrickson and Swayze.
    
      For the demurrant, Bedle, Edwards & Thompson.
    
    For the plaintiff, Weller & Lichtenstein.
    
   Per Curiam.

This is an action to recover for damage done to the property of the plaintiff by surface water escaping from a broken sower. The charge against the Bergen Turnpike Company is that it maintained a wall along its turnpike, which, while in repair, acted as a dam and prevented the escaping water from flowing upon plaintiff's land; that they allowed this wall to become ruinous, and that by reason thereof it ceased to act as a dam and allowed the escaping water to flood the plaintiff's premises.

The declaration fails to show that the turnpike company was under any obligation to the plaintiff to keep this wall in repair. The mere allegation that such a duty existed is not sufficient. In order to show liability on the part of the defendant it is necessary for the plaintiff to set out the facts from which the alleged duty arose. This the pleader has failed to do.

The defendant is entitled to judgment on the demurrer.  