I dissent. The complaint is predicated upon a charge for the release of water, which water was to be released free of charge under and pursuant to a written contract between the two water companies involved. Plaintiff was compelled to pay to save his crops, as defendant had the release control under lock and key.
The reply, however, changes the picture entirely, in spite of the denials therein. Defendant answered that the charge was not for the release of the water, an expense incident to the terms of the written contract, but was for the use of a lateral owned by defendant, a charge in the nature of a share of the expense in the upkeep of the lateral. In his reply plaintiff alleges that this action was brought because the amount charged was far in excess of the fair and equitable proportion that should have been required for the upkeep of the lateral, that plaintiff (and his assignors) have always been ready and willing to pay a just proportion of that upkeep, but that defendant has been arbitrary in fixing the amount and will not account to plaintiff (and plaintiff's assignors) as to the correct amount.
The result: The terms of the written contract between the water companies are no longer material. The question now has become: Is the charge excessive, either under some contractual relationship between plaintiff (or his assignors) and defendant, or under section 100-1-7, R.S.U. 1933, which reads: *Page 522
"When any person desires to convey water for irrigation or any other beneficial purpose and there is a canal or ditch already constructed that can be used or enlarged to convey the required quantity of water, such person shall have the right to use or enlarge such canal or ditch already constructed, by compensating the owner of the canal or ditch to be used or enlarged for the damage caused by such use or enlargement, and by paying an equitable proportion of the maintenance of the canal or ditch jointly used or enlarged; provided, that such enlargement shall be made between the 1st day of October and the 1st day of March, or at any other time that may be agreed upon with the owner of such canal or ditch. The additional water turned in shall bear its proportion of loss by evaporation and seepage."
The principles enunciated in the case of Combined Metals,Inc., et al. v. Bastian et al., 71 Utah 535, 267 P. 1020, are applicable here.
The reply here is a complete departure from the complaint, and shows clearly that the controversy is not as alleged in the complaint, but is something else. A judgment could not be rendered upon the complaint in favor of plaintiff without making findings of fact wholly without the issues raised by that complaint. There is nothing in the complaint about an excessive charge either under a contract or under statute. The lower court was not in error. *Page 523