dissenting. I would reverse this judgment. Appellant’s only point for reversal is that the trial court decided the cause upon the finding that there was a boundary by agreement, when that issue had not been raised by the pleadings or proof. My review of the record does not disclose that this question was ever in issue. The appellees relied upon adverse possession, as well as a denial of appellant’s title. I certainly agree that the pleadings should be treated as amended to conform to the proof when evidence on an issue not made by the pleadings is admitted without objection, in a proper case. That rule does not deprive the party who does not object of the basic right to be apprised of a new cause of action or defense not mentioned in the pleadings. See Dorris v. Dorris, 249 Ark. 580, 460 S.W. 2d 98. The rationale of the rule permitting the introduction of a new issue into a case because of the failure of the party against whom the issue is asserted to object is based upon waiver of the objection. Williams v. Davis, 211 Ark. 725, 202 S.W. 2d 205; Van Bibber v. Strong, 203 Ark. 1090, 160 S.W. 2d 861. See also St. Louis, A & T Ry. Co. v. Triplett, (on rehearing) 54 Ark. 304, 16 S.W. 266.
It is elementary that a waiver is a voluntary relinquishment of a known right. In this case, the evidence relied upon by the majority to raise the issue is evidence that is consistent with the defense of adverse possession which was asserted in the pleadings. Appellant would not have had any right to have the testimony excluded. I also submit that appellant could not be charged with notice that an issue not pleaded had arisen. If he had, he might have been able to produce Mr. Castleman or other witnesses to show that the fence was not built on a line agreed upon as the boundary, or that there was no agreement that it marked the boundary.
Appellees state that the parties briefed this issue in the trial court, but the record does not disclose this. Appellant relies strongly on the fact that this issue was not raised, so we cannot base any holding upon a matter not disclosed by the record.
I would reverse the judgment for a new trial.
I am authorized to state that Mr. Justice George Rose Smith joins in this dissent.