McCAKTY, J.,
after making the foregoing statement of case, delivered the opinion of the court.
*479Appellant’s first contention is that tbe court erred in finding that the alleyway in question had not been dedicated to the public as a highway. It is sufficient here to state, without reviewing the evidence, that there is a sharp conflict in the evidence on this point, and, as there is substantial evidence in the record which tends to support the finding of the trial court on the question of dedication and abandonment, such finding cannot be disturbed..
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 *480constructed about twenty-five years ago on what was then supposed to be the true boundary line between plaintiff’s and defendant’s premises. Plaintiff testified that she “had never heard any objections made to that fence being the dividing, line between the two properties.” Other witnesses testified that they had always recognized and understood that the fence was the dividing line and marked the boundary line between these properties. -The line of fence is two feet north of the northern line of the strip of ground described and claimed by plaintiff in her complaint. Neither during the trial, nor at any other time, did plaintiff amend or offer to amend her complaint so as to include therein this strip of ground 1.8 feet in width which the court gave her and upon which the wall referred to is constructed.
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 *481in tbe wrong place, and that, if sbe was not satisfied with the survey, to get a surveyor . . . and have him run it off and, if my man was wrong I would pay the entire expenses, it shouldn’t cost her a cent, but I wanted to be sure I was right.” Plaintiff made no objection to the survey, neither did she make any protest or objection to the construction of the wall on the ground where it now stands. Under these circumstances the defendant might well have honestly believed that his right to maintain the wall of his building where it stands would never be questioned. And, even though it be conceded that plaintiff and her predecessors in interest acquired title to this narrow strip of ground upon which the wall stands by adverse possession, it does not necessarily follow that under a proper pleading she would be entitled under the circumstances of this case to have her title quieted and the defendant pull down and remove the wall.
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*482tioned by Mr. Jones, if any existed in his favor. While these questions are not raised by the pleadings, yet the court, by going out side of the issues to determine the title to the 1.8 feet of ground referred to, has adjudicated them so far as they may have any bearing on defendant’s right to maintain his wall on this piece of ground, and they are here referred to for the purpose of inviting attention to the injustice which might be done in this as well as in other cases of like character, should any arise, if we should affirm the judgment and thereby establish a practice permitting a court to find on issues not raised by the pleadings. Besides, the rule is elementary that the findings and judgment must conform to, and be within, the issues made by the pleadings. In 11 Ene. PI. and Pr., 868, the rule is stated as follows:
<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.”
*483In tliis case plaintiff alleges ownership of a strip of ground one rod in width by twelve rods in length. The description of the land is set out in the deed under which she shows title with the same particularity as it is alleged in the complaint. When land is thus particularly and technically described, such description must control. (5 Cyc. 878; Jones, Real Prop. & Conv. sec. 410; Haggin v. Lorenz, 15 Mont. 309, 39 Pac. 285.) There is absolutely no conflict in the evidence as to the exact location of the land described in the complaint. According to the evidence introduced by plaintiff, consisting of the deed under which she claims title and a survey and plat made by R. S. Tilden, and the testimony of Tilden himself, conclusively shows that the northern line of said land is south of defendant’s wall. While a party to an action or proceedings involving the title to real estate may recover a less amount than that demanded by the allegations of his pleading, the rule is well settled that he cannot recover more than he demands. (15 Cyc. 180; Reay v. Butler [Cal.], 1 Pac. 669.) Counsel for respondent recognize this rule, for they say in their brief: “We do not claim that the court would have any right in any way to adjudicate, either the title to any land not described in the complaint, nor to make an adjudication that any trespass of any kind or character had been committed upon any other land.” This is not a case wherein there is a dispute or a conflict in the evidence as to the exact location of the boundaries of the property described in the pleadings. As hereinbefore stated, the evidence shows conclusively that the whole of the strip of land in issue is south of plaintiff’s wall. The court, however, goes outside of the issues and finds that the plaintiff is the owner of other land not mentioned in the pleadings, and found that a trespass had been committed upon that property in a way entirely different from that alleged in the complaint, and enjoins the defendant from maintaining his building thereon. Therefore the findings and judgment, so far as they refer to the 1.8 feet of ground upon which defendant’s wall is standing, are erroneous.
The, case is remanded, with directioní» to the trial court to *484modify the findings and judgment by eliminating therefrom that part wherein it is found that the plaintiff is the owner of the 1.8 feet of ground g,nd wherein the defendant is enjoined from maintaining his wall thereon. In other particulars the judgment is affirmed. It is ordered that each party pay his own costs on this appeal.
BABICH, C. I., concurs.
STRAUP, J.,
(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*485er of said fence and tbe premises on wbicb it was situated during all the times herein mentioned. That said fence was on a line 1.8 feet north of the south line of the brick foundry owned by the defendant and which is located and situated, except as to the south one foot and eight inches (1.8 feet) thereof, upon the premises immediately north, the premises described in the complaint herein. That the said fence and line of said fence has been an acknowledged and undisputed boundary between the premises described in the complaint and the premises immediately adjoining on the north for more than thirty years last past, and the plaintiff and her predecessors in interest have been in open, notorious, adverse, and undisputed possession of the premises immediately south of said line, under a claim of right, for more than thirty years last past. That on a day in May, ll901, the defendant forcibly broke and entered upon the said land and took down and destroyed a large part of said fence, to-wit, 109.5 feet of the westerly part thereof, and proceeded to erect a certain building, the south wall of which extended and projected 1.8 feet over and upon said premises of plaintiff for a length of 109.5 feet, and still maintains the same.” I do not at all dispute the propositions of law as stated by the majority court that the judgment must conform to and be supported by the pleadings ; that a party cannot declare on one thing and recover on another; that a party'cannot allege a trespass upon one parcel of land and recover for a trespass upon another and different parcel; that under circumstances where, through a mistake as to the boundary line, a building has been projected a little over the line, or upon principles of an equitable es-toppel, when involved and existing, a court of equity will not order the removal of the building. But these principles have here no application. A certain parcel of land was described in the complaint Respondent alleged she was the owner and entitled to the possession thereof, and that the defendant trespassed'thereon. The defendant answered by a general denial and alleged a dedication to the public. These were the issues as framed by the pleadings. . At the trial, among other contested questions, was thé one of boundary which was sharply *486contested by both parties. The court found the north boundary line of the premises described in the complaint to be the fence line as contended for by the respondent. The appellant contended that the boundary line should be 1.8 feet south thereof. Hence the inquiry involved, and the findings • were, not as to different parcels, but as to the disputed boundary line of the parcel alleged in the complaint. When the majority court say the fence line is two feet north of the line of the parcel described in the complaint, that is upon the theory of the surveys, not upon the theory of the fence line. The court having found that the fence line was. acquiesced in and treated as the actual boundary line for thirty years, and there being ample evidence to support such finding (indeed, upon that there is no substantial conflict), the law is well settled that such is the true line and neither party can claim beyond it, no matter what the surveys show. (Strickly v. Hill, 22 Utah 257, 62 Pac. 893, 83 Am. St. Rep. 786, and cases there cited.)
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-*487field to see wbat she had to say about it. She was administrator of the estate, and I had a conversation with her in regard to it, and in that conversation I told her that I had the survey made and expected to build there, and I wanted to be right and I didn’t want to put my building in the wrong place, and that if she wasn’t satisfied'with the survey to get a surveyor herself and have him run it off, and if my man was wrong I would pay the entire expenses. She said she would see about it. Q. Well, did she do anything toward having that survey made ? A. Not to my knowledge. Q. Did she ever call-upon you about it? A. Never; I never had a representative call upon me.” Respondent said: “Mr. Crager tore down a little more than half of that fence. He tore down about five rods without my permission. I objected to it being torn down. ... I had a conversation with Mr. Crager about the time he bought the property. He came to see me. He had pulled the fence down and came to see if he was right, if he could do it. He told me he had the property surveyed. At the time of the conversation I was administratrix of my husband’s estate.” Hpon cross-examination she said: “Q. And Mr. Crager, you allege in your complaint here, has been trespassing on that since some time in May, 1901 ? A. Yes, sir. Q. That is the time you understand that he built his shop, isn’t it, Mrs. Tuckfield? A. Between 1900 and 1901, yes, sir. Q. And this conversation you had with him just about the time he began to build it, wasn’t it, as you understand? A. Yes, sir; before he started to build, I believe. Q. And in that conversation he told you that he had had a survey made and wanted you to have a survey made, if you found any objection to it, didn’t he ? A. No, sir, I didn’t see anything of a survey.” There is also other evidence with reference to the situation of the building with the respect to its projecting over the fence line and as to whether it is upon respondent’s or appellant’s land; It will thus be seen that this 1.8 feet of ground was not a parcel of land separate and different from that described in the complaint, but it was part and parcel of the rod mentioned and described in the complaint, and, as such, was litigated by the parties. Indeed, I *488think the effect of the prevailing opinion is a holding that the respondent was properly adjudged the owner of the 1.8 feet of ground, but 'that she was not entitled in this action to any redress on account of the maintenance of a portion of the building thereon, because such fact was not specifically alleged in the complaint as an act of trespass. But when the parties, in effect, treated such act as being within the general allegations of trespass, as I think they did, the reason for denying respondent redress therefor, because not specifically alleged, becomes untenable.
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.