(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.