Tuckfield v. Crager

McCAKTY, J., after making the foregoing statement of case, delivered the opinion of the court. — 479 — Appellant’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 — 480 — constructed 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 — 481 — in 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 — 482 — tioned 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.” — 483 — In 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 — 484 — modify 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.