82 P. 860 | Utah | 1905
Lead Opinion
after making the foregoing statement of case, delivered the opinion of the court.
It is further contended that the court erred in finding that the south wall of defendant’s building extends 1.8 feet over the south boundary line of his premises and onto the strip of land described in plaintiff’s complaint, and that the court erred in entering judgment enjoining defendant from maintaining the south wall of his building on the 1.8 feet of ground referred to. By an examination of the pleadings it will be observed that plaintiff alleges in her complaint1 that she is the owner of a strip of ground one rod in width by twelve rods in length, specifically describing the same by metes and bounds, and that she is also the owner of a certain fence therein described and then she proceeds to point out and allege the specific acts of trespass -on the part of defendant upon which she relies for recovery: First, the taking down of the fence by defendant; and, second, his continually driving over the land with horses, wagons, and other vehicles and using it as a driveway. No reference whatever is made in the pleadings to the wall in question. Plaintiff called R. S. Tilden, who is a civil engineer, as a witness, and he testified that he surveyed and platted the premises described in the complaint. The plat was admitted in evidence, and shows, and Tilden so testified, that the survey from which it was made was run “according to old existing land lines as found on the ground.” According to Tilden’s testimony and the plat referred to, no part of defendant’s wall is on the rod of ground described in the'complaint, but that there are six inches more ground south of the wall than plaintiff claims in her complaint. True, evidence was introduced which tended to show that an old partition fence, the one which defendant is charged in the complaint with having taken down, was
Appellant contends that, as there is no allegation in the complaint wherein it is claimed that the line of the partition fence mentioned is the northern boundary of the premises therein described, and no reference having been made in the pleadings to the wall, the findings of the court on these questions are outside of the issues made by the pleadings. We are of the opinion that this objection to the findings and judgment is well founded. As stated by counsel for appellant in their brief: “The piece of ground [referring to the 1.8 feet] is not contained in or referred to in the pleadings, no trespass is alleged to have been committed upon it, no question of title, possession or ownership was raised concerning it.” The record shows that soon after defendant purchased the property which is contiguous to and adjoining plaintiff’s premises on the north, he procured the services of a competent civil engineer who surveyed and platted the ground, and he immediately thereafter commenced the construction of a brick building of which the wall in question forms a part. After the survey was made, and before he commenced work on the building, defendant went to plaintiff and informed her of what he had done in the premises. He said, quoting his own testimony, which, is not denied: “I told her I had a survey made and expected to build there, and Iwanted to be right and didn’t want to put my building
Jones, in his treatise on the Law of Real Property and Conveyancing (volume 1, sec. 373), says:
“Even in case there has been a mistake as to the boundary line and one owner has placed a building a little over the line upon land of an adjoining owner, a court of equity will not order the removal of the building, but will leave the party to his remedy at law. The court may, however, enter a decree that, if the plaintiff will release the strip of land so built upon within a certain time, judgment shall be entered for the value of the land as found by a referee and costs. The court will not aid the plaintiff in obtaining an exorbitant price for land which is comparatively valueless except for litigation.”
As plaintiff made no claim to the 1.8 feet of ground in her complaint, nor in any way challenged defendant’s right to maintain his wall thereon, he was not called upon, nor did he have any opportunity, to plead the equitable defenses men
<fA court cannot properly put upon its record a judgment which is not a proper sequence of the pleadings. It is a general rule that the judgment must conform to, and be supported by, the pleadings in the case. A recovery must be had, if at all, upon-the facts alleged, and facts proved but not pleaded will not support the judgment.”
In the case of Sowles et al. v. Clawson, 76 Pac. 1067, this court, in an opinion written by Chief Justice Bartch, held that:
“A party cannot declare on one thing and recover on another. That in every action the plaintiff must, in his complaint, give the defendant fair notice of what he claims, is the elementary rule of pleading; and, if at the trial he finds a deviation in his evidence from his allegations in the complaint, he should amend, if the variance is not such as to preclude an amendment so that when the judment is announced it will be secundum allegata et probata. Among the reasons for this certainty of pleading is so that the judgment, when rendered, will be a bar to any subsequent suit for the same claim.”
The, case is remanded, with directioní» to the trial court to
Dissenting Opinion
(dissenting).
To that portion of the opinion affirming the judgment I concur; to that portion modifying the judgment I dissent. I think that 1.8 feet of ground was part and parcel of the land described in the complaint and was fairly within the issues. The suit involved the ownership and possession of a certain .rod of ground. One of the material questions in the case was the location of the north boundary line of said rod, the line marking the boundary between the lands of the respective parties. The respondent always contended that that line was established by a certain fence, which for thirty years was acquiesced in and treated as the actual boundary line. She testified that the fence was the north boundary line of the rod mentioned and described in the complaint. The appellant contended that the boundary of his land was where the survey showed it to be, 1.8 feet south of the fence. Much evidence was given on behalf of respondent showing that the fence was established, maintained, acquiesced in, and treated in manner and for the time as claimed by her. Evidence was also given by surveyors showing that the line, according to surveys, was 1.8 feet south of the fence. On these matters the court found as follows: “That the premises [described in the complaint] extended to, and the plaintiffs were the owners thereof, a line coincident with the line of a certain fence which formed the northern boundary line of said premises, and which has existed at the said place for more than thirty years last past, and which is still standing for a length of about 86 feet on the eastern part of said northerly lot line, and the said plaintiff as such executrix was the own
It is claimed the respondent should have specifically alleged in her complaint the projection of the wall. The respondent alleged ownership and possession of the land, that the defendant forcibly broke and entered upon it, took down the fence, disturbed her in the use and occupation of said land, and prevented her from enjoying the same. These allegations, of course, are very general. But if they were deemed so uncertain and indefinite that it could not reasonably be ascertained what the appellant was called upon to meet, he should have, by proper pleading, called on the action of the court to require the respondent to make her allegations more specific and certain. This he did not at all do, but proceeded to trial, and both he and respondent litigated the boundary line, and as to whether the wall of appellant’s building was upon his ground or upon that of the respondent. The testimony of the respective parties, I think, shows that the situation of appellant’s building was entered upon and drawn in question. Appellant said: “When this matter came up and I wanted to build on there, I went to see Mrs. Tuck-field. After I had a survey made I went to see Mrs. Tuck-
Reference has also been made to the fact that appellant may have constructed his building over the true line through mistake. The position of the fence was obvious, and that it was marking the boundary line between the parties was apparent. That the fence stood there for thirty years and during all this time was claimed and treated by respondent’s intestate and by his predecessors in interest and by the predecessors of appellant, as the actual boundary, and, as such, was acquiesced in by them, is not even disputed by appellant. Nor is it at all claimed by him that he was ignorant of such fact, but the record shows, until he got ready to build, he did not act disputing such boundary line or at all claiming it was otherwise than the fence line. The conduct of appellant is not that he, through mistake, placed his building south of the fence line; but, to the contrary, his conduct asserts that he did not propose to be bound by the fence line and therefore tore it down and wholly ignored it, and insisted on constructing, and did construct, his building over and beyond it, then claiming the boundary line where the surveys showed it to be regardless as to the fence. ■ Something.is also sáid that the respondent, the administratrix of the estate, made no objection to the survey and did not protest to the construction of the building, from which it is inferred an estoppel may be claimed. Upon this I think the evidence fairly conflicted. But I do not understand the law to be that an administrator by declarations or conduct, upon principles of an equitable estoppel, may thereby forfeit title to land of his intestate or transfer its use and enjoyment to another. I understand the law to be quite emphatic that he may not do so.