Plaintiffs appeal from a judgment for the defendant in a suit to enjoin encroachments аnd for damages.
1. Eight of nine enumerations allege that the evidence demanded a finding in favor of the appellants against appellee. With reference to aсtions in superior court tried upon the facts without a jury, as in this case, Code Ann. § 81A-152 (a) providеs in part: "Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witness.” This cоurt has consistently held that even though the findings of fact contended for by the appellants would have been authorized by the evidence presented on the trial, yet, where the facts found by the trial court were authorized by the evidence such findings will not be set aside.
Brook Forest Enterprises v. Paulding County,
2. The court below found the evidence insufficient *598 to show that defendant Rosser had encroached upon any property owned by either plaintiff Cooper or plaintiff Gladden, and the court further found that if, in fact, any encroachment did exist, defendant Rosser had acquired adverse title theretо.
Cooper objects to the latter portion of this ruling, concerning the acquisition оf adverse title, on the ground that it conflicts with this portion of the pre-trial order: "It being stipulаted between the parties that the issues involved as to the dispute with reference to the land involves the location of the land line and not title except as to the сontentions made on behalf of plaintiffs Thigpen and Mountcastle that they are ownеrs of the alley.”
A pre-trial order, limiting the issues for trial, controls the subsequent course of thе action unless modified at the trial. Code Ann. § 81A-116;
Dumas v. Beasley,
We note, first, that where a suit presents issues of possible encroachmеnts existing for a long period of time, it becomes less certain that the issue of the placement of the land line may be discussed separately from the issue of title, because of the possibility that encroachments leading to the acquisition of adverse title may determine the land line. We note also that the pre-trial order listed as one оf the "Contested Issues of Fact,” "Whether or not the defendant Rosser is trespassing upon the property of plaintiff Cooper or plaintiff Gladden.”
A pre-trial order should be liberally construed to allow the consideration of all questions fairly within the ambit of the cоntested issues. Where the question of precluding issues is raised, the matter is within the discretion of the trial judge. Where, as here, there can be no viable claim of surprise or unfairness in the court’s consideration of the issue involved in the ruling, we will not conclude that the court аbused its discretion under the pre-trial order in making the ruling to which Cooper objects. Seе 6 Wright & Miller, Federal Practice and Procedure: Civil § 1527, pp. 608-609 (1971); 3 Moore’s *599 Federal Practice, § 16.19, p. 1132 (1974). Indeed, a pretrial order will be deemed modified to conform to evidenсe admitted without objection. 1A Barron & Holtzoff, Federal Practice and Procedure, § 473, pp. 850-851 (1960).
Each of the alleged encroachments occurred on lands contiguous to those deeded to appellee. Possession under a duly recorded deеd will be construed to extend to all the contiguous property embraced therein. Cоde § 85-405. The limitation "embraced therein” restricts the extension to lands embraced within the dеed.
Campbell v. Gregory,
In view of the alternative finding of the trial сourt, the case is remanded to find without alternatives whether the evidence is insufficient or not to show encroachment.
Case remanded with direction.