
    Irwin, Respondent, vs. Richardson and another, imp., Appellants.
    
      October 3
    
    
      October 23, 1894.
    
    
      Wlowage of land: Pleading: Action at common law or under mill-dam act?
    
    1. The complaint in this action, stating facts sufficient to constitute a cause of action in tort, at common law, for the flowing of plaintiff’s lands by water set back upon them by defendants’ dam, but not sufficient to constitute a cause of action under the mill-dam law, is held on demurrer to have been intended to plead the former cause of action, although many of the facts stated are not material thereto and some of them'seem to evince a purpose to state a cause of action under the mill-dam law.
    A. The use of the word “ wrongful ” was not necessary to a statement of the cause of action in tort.
    APPEAL from the Circuit Court for Booh County.
    The appeal is from an order overruling a demurrer to the complaint. The case is sufficiently stated in the opinion.
    
      II. JP. Richardson, for the appellants.
    Eor the respondent the cause was submitted on the brief of Nolan & Cunningham.
    
   NewMAN, J.

The complaint, very clearly, states facts which constitute a cause of action in tort for the flowing of plaintiff’s premises by water set back upon them by defendants’ dam. It states sufficient to entitle the plaintiff to recover her damages for such flowing by the common law. The pleader has not contented himself with a “concise ” statement of the facts constituting his cause of action, but has stated many other facts not material to his cause of action. Some of the facts stated seem to evince a purpose to state a cause of action for a recovery under the mill-dam law, but are not sufficient for that purpose. This complaint, as a whole, is challenged by a demurrer, on the ground that, on its face, it does not state facts sufficient to constitute a cause of action. Now, it manifestly does state facts sufficient to constitute a cause of action. It states a cause of action in tort, for flowing the plaintiff’s lands. That could be made no clearer by the use of the.word “ wrongful.” It is equally clear that it does not state a cause of action under the mill-dam law. No one claims that it does.

However it may be in doubtful cases, in a case like this it is fair and reasonable to hold that the pleader has intended to plead the cause of action which he has sufficiently pleaded, and to treat matters pleaded which are not relevant to that cause of action, and do not amount to the statement of another or different cause of action, as surplusage. If the party is aggrieved by it, he has a remedy by motion to strike it from the pleading as surplusage.

By the Court.— The order of the circuit court is affirmed.

Newman, J. The case of O'Rourke, Respondent, vs. Richardson and another, imp., Appellants, presents the same question and is ruled by the decision in Irwin v. Richardson, ante, p. 429.

By the Court.— The order of the circuit court is affirmed.

Newman, J. The case of Walsh, Respondent, vs. Richardson and another, imp., Appellants, presents the same question and is ruled by the decision in Irwin vs. Richardson, ante, p. 429.

By the Court.— The order of the circuit court is affirmed.  