Kallenburg

The plaintiffs sued for damages caused by damming back surface waters and for injunction against further interference with their flow. The complaint was in two counts based upon different theories of the plaintiffs’ right to maintain the action. A general demurrer to the complaint and to each cause of • action was sustained as to. both causes of action, and upon plaintiff’s refusal to amend, judgment was entered for the defendants. The plaintiffs appeal.

All the facts are set forth in the second count. The demurrer went to the root of the ease. If upon all the facts the plaintiffs are not entitled to maintain their suit, it would be idle to send the case back for further proceedings by the application of a technical rule of pleading to a partial statement of facts in the first count. This is the typical case where upon a single series of facts the plaintiffs are in doubt upon which of several theories they might recover; not one where in the different counts they seek to recover for several infractions of distinct rights.

Disregarding the legal phraseology, the essential facts are that formerly a watercourse extended in a general easterly direction from the hills on the westerly…