Moore

The court below found “all the allegations of the complaint herein are true, except that the capacity of the ditch of plaintiff, therein described, is four hundred and thirty-two cubic feet of water per second, and no more.” The first count of the complaint fails to aver intelligibly what is the capacity of plaintiff’s ditch. The allegation in the first count is: “The said ditch, during all the times, etc., had the capacity to carry one hundred and eighty cubic feet of water, running and flowing at the velocity of four feet per second.” It is very clear that a statement that a ditch has capacity to carry one hundred and eighty “cubic” feet of water conveys no distinct idea, and the words “running and flowing at the velocity of four feet per second,” add no force or meaning to those which precede them. Seven hundred and twenty cubic feet of water might indeed pass into a ditch in a second of time, or so might one hundred and eighty cubic feet. But the allegation of the complaint is not an allegation of either of those two things. An acceleration of the current would increase the quantity of water passing any point on the ditch in any fixed period of time. But an allegation that a…