76 P. 1067 | Utah | 1904
This a snit in equity to restrain the defendant from using a certain roadway in Salt Lake City as a means of ingress and egress to and from a certain building and premises. It is alleged, substantially, in the complaint that the plaintiffs are the executors of the estate of Bolivar Roberts, decease^; that the deceased, during his lifetime, was the owner of an undivided half interest in a strip, of land off from the west end of lot 1, block 75, plat A, Salt Lake City survey, 25 feet in width, and extending from First South street north the distance of 165 feet; that the ‘£defendant is the owner of the remaining undivided one-half interest in the said property;” that “the said property is used and for more than thirteen years last past has been continuously used, by the said Bolivar Roberts and by the parties hereto as a private and exclusive right-of-way and roadway to and from their premises situate east of and adjoining the same, including the use thereof for carriages and vehicles; ’ ’ that said Roberts and the defendant “became the owners of the undivided interests in the property jointly;” that they and the plaintiffs ever since used the same exclusively, for the purposes aforesaid, under a written agreement made between Roberts and the defendant about June 22,1888, by the terms of which the roadway was to be open the full width and length perpetually, for the exclusive benefit of the lands of said Roberts and the defendant lying east of the roadway, and it was agreed that the right-of-way should be appurtenant to and run with such lands; and that the roadway has been kept open full width ever since that date, except that, by the mutual consent of both parties, a sidewalk was constructed and is now maintained upon the east side thereof.
It will thus be seen from these pleadings that the plaintiffs claim that they and the defendant acquired their right to the use of the roadway by virtue of the agreement of June 22, 1888; that the defendant con
After the testimony was all admitted, and notwithstanding the objection to the introduction of evidence, for the purpose of showing an abandonment, was sustained upon the ground that no abandonment had been pleaded and was not in issue, the findings of fact and conclusions of law were so framed as to show an abandonment or extinguishment of the defendant’s right to use the roadway, and the court, among other things, decreed that “any right-of-way heretofore enjoyed or used over any portion of the said roadway, and particularly that certain ten-foot roadway, being five feet off the east side of lot 2,.and five feet off the west side of lot 1, has been extinguished by the acts of the said defendant in taking exclusive possession of and erecting permanent structures upon the portion thereof originally contributed by the predecessor in title of the said defendant, John R. Clawson, from the said lot 2.” The appellant insists that this decree is not supported by the pleadings, and that he was neither called upon nor prepared to meet such an issue.
We are of the opinion that this contention is well founded. The findings and decree show an- abandonment by the defendant of all his rights in the right-of-way, and yet no abandonment or extinguishment was pleaded. Clearly, there is a material and fatal variance between the pleadings and the findings and decree. This part of the decree goes beyond the pleadings. It virtually declares that, because of certain acts committed by the defendant, he has no right in that street at all, while the • complaint admits that he acquired rights therein by agreement but alleges that those rights were limited to property situate on the east side of the street, and
The judgment must he reversed, with costs, and the cause remanded, with directions to the court below to grant a new trial, and permit the parties to amend their pleadings if they so desire. It is so ordered.