Silva

This action is brought to abate an embankment constructed by defendant, whereby the surface water is alleged to be prevented from flowing from and over a private right of way owned and possessed by him, the said plaintiff, and to enjoin defendant from maintaining such embankment. Plaintiff had a decree as prayed for, and this appeal is from the judgment, and from an order denying defendant’s motion for a new trial. The amended complaint of plaintiff was demurred to, upon two grounds, viz., “that said amended complaint does not state facts sufficient to constitute a cause of action,” and upon the further ground “that plaintiff does not allege any damage different or peculiar than that resulting to the common public. ’ ’ The last cause of demurrer assigned is not one for which a demurrer can be properly interposed, under section 430 of the Code of Civil Procedure. The same cause may, however, be urged, in a proper ease, under the objection that the “complaint does not state facts sufficient to constitute a cause of action.” The contention of appellant seems to be based upon the theory that the amended complaint contains no allegation that the roadway in question is a private road,…