The first special ground of the motion for a new trial sets forth an exeeTpt from the charge to the jury, where the contentions of the parties are stated, on the grounds, that the charge is argumentative in that the plaintiff’s contentions are more fully given; that it is confusing, in that the expressions “the plaintiff alleges” and “the plaintiff shows” are used therein; and that the charge does not express the contentions of the parties with equal fairness. The trial judge appended the following note to this ground of the motion: “By reference to the *36 pleadings in the case and the charge of the court it will be seen that in my chargе to the jury I stated with equal fairness the contentions of the plaintiff as well as of the defendant. No request for further instructions was made.” Ground 3 complains of an excerpt from the charge, where the cоurt instructed the jury that if they should make certain findings from the evidence they should return a verdict in favor of the defendants. This charge is assailed on the ground that in fact there was no contention of the defendants аnd no evidence upon which to base the charge that Morton ever established any line between these lands, and that the right of the defendants to prevail did not depend upon the existence of a line run by Morton. The judge appended a note quoting portions of the defendants’ answer where it is averred that there is no line except the Morton line, that the defendant Mrs. Brown has agreed to no dividing line еxcept the line run by Morton, and that this line is the true line. The note also recites that Morton, as a witness for the defense, testified that he ran a line between lands owned by the plaintiff and Mrs. Brown; that counsel for thе defense argued to the jury that the true dividing line was that run by Morton, and not the Williams line; and that the charge complained of was based upon such averments, evidence and argument. The motion was apprоved by the judge, “subject to the notes appended to grounds 1 and 3.” This record contains no charge of the court, and none was specified by the plaintiffs in error.
In
Mims v. Mims
151
Ga.
330 (
Ground 2 оf the amendment to the motion complains of an excerpt from the charge, where the court instructed the jury that in the event they should find from the evidence, and the rules of law given in charge, that the true dividing line was as claimed by the plaintiff, that is, the line that was run and surveyed by Williams, and was agreed to by Mrs. Brown and was acquiesced in by the owner for seven years, they should find for the plaintiff; that if Mrs. Brown acquiesced in and agreеd that what was known as *38 and was spoken of as the Williams line was the dividing line between the parties when the defendant Gray purchased the timber rights from Mrs. Brown, her agreement would be binding on him, and he would take just such as was represented on the west side of that dividing line. The criticism of this charge is, (a) that the court assumed as true that a line was surveyed and run by Williams, and that it was known and spoken of as the Williams line, when the main issue in the casе was whether or not such a line existed; and (b) that the assumption of such to be true was an expression of opinion by the court that such line had been established by the evidence. The language of the chаrge excepted to is not susceptible of the construction placed thereon by movants. The references to the Williams line are preceded by the instruction that “in the event, after considering the evidence in this case and the rules of law that the court has given you in charge, that the true dividing line is as claimed by plaintiff.” "While the court did not follow the word “event” with the words “you should find,” it is obvious, and was manifestly obviоus to the jury, that the judge meant that if the jury should make such finding, they should do so by considering the evidence and the charge of the court. There is no language in the charge that would authorize a construction to the effect that the court was undertaking to state any fact or any evidence in the case. On the contrary, it directed the jury to base any finding solely upon the evidence and the law. There is no merit in this ground.
Thе remaining assignment of error on the exceptions pendente lite raises the question whether or not the decree as entered was authorized by the verdict. “A decree is the judgment of the judge in equitablе proceedings upon facts ascertained.” Code, § 37-1201. “A superior court shall have full power to mould its decrees so as to meet the exigencies of each case; and shall have, full power to enforce its decrees when rendered.” § 37-1203. In equity cases, upon the request of either party, made after the same is called for trial and before the beginning of the introduction of evidence, the presiding judge shall instruct and require the jury to find a special verdict of facts only; and upon such special verdict the presiding judge shall make a written judgment and decree in the cause. § 37-1104. The exceptions pendente lite recite that the court expressly withdrew from the consideration of
*39
' the jury all issues except that of damages; and no question is here raised as to the legality of the court's action in this regard. Involved in the ease as made by the pleadings were prayers for decree of title to the strip of land in controversy, judgment in damages for continuing trespass by the defendants upon this strip of lаnd, and injunction to prevent the continuance of such trespass. From the pleadings and the evidence the line as contended for by the plaintiff must be found to be true; else there was no trespass and nо damages. Therefore a finding of fact by the jury that a trespass had been committed necessarily was a finding that the plaintiff had title to the strip of land in controversy. In
West-berry
v.
Reddish,
178
Ga,.
116 (3) (
Judgment affirmed.