Douglas Oil Co. v. State

Citation81 S.W.2d 1064
Decision Date27 March 1935
Docket NumberNo. 7828.,7828.
PartiesDOUGLAS OIL CO. et al. v. STATE et al. (WHITESIDE CASE).
CourtCourt of Appeals of Texas

Appeal from District Court, Travis County; C. A. Wheeler, Judge.

Suit by the State against the Douglas Oil Company and others wherein named defendant filed a cross-action. From a judgment, named defendant and others appeal.

Affirmed.

See, also (Tex. Civ. App.) 70 S.W.(2d) 452; (Tex. Sup.) 76 S.W.(2d) 1043.

W. A. Keeling, of Austin, Francis H. De Groat, of Duluth, Minn., Chas A. Holden, of Tulsa, Okl., and Chas. Gibbs, of San Angelo, for appellant Douglas Oil Co.

I. S. Handy and A. D. Dyess, both of Houston, for appellant Federal Royalty Co.

A. D. Dyess, of Houston, for appellant P. S. Moore.

Robt. T. Neill, of San Angelo, and Turner, Rodgers & Winn, of Dallas, for appellant Stanolind Oil & Gas Co.

Rex Baker, R. E. Seagler, and Gilvie Hubbard, all of Houston, Ben H. Powell, of Austin, for appellee Humble Oil & Refining Co.

R. L. Batts, of Austin, Jno. E. Green, Jr., of Houston, and Wm. L. Wise, and P. O. Settle, both of Fort Worth, for appellee Gulf Production Co.

Thompson, Mitchell, Thompson & Young, of St. Louis, Mo., and P. G. McElwee, of Houston, for appellee Shell Petroleum Co.

E. H. Yeiser, of Austin, for appellees D. C. Reed, E. H. Perry, M. H. Reed, and Bernard Mollberg.

T. R. Boone, of Wichita Falls, for appellees Mrs. Ida May and George W. Ramsey, and Viola Seeley.

Burney Braly, and G. R. Pate, both of Fort Worth, and G. B. Smedley, of Austin, for appellee Continental Oil Co.

Jas. V. Allred, Atty. Gen., and R. W. Yarborough, Asst. Atty. Gen., for the State.

Collins, Jackson & Snodgrass, of San Angelo, for appellees Western Oil & Royalty Co., M. D. Bryant, P. L. Childress, W. M. Hemphill, and C. C. McBurnett.

John A. Braly, of Fort Worth, for appellees Peerless Oil & Gas Co., Southland Royalty Co., and Argo Royalty Co.

A. M. Gee, of Findlay, Ohio, R. C. Gwilliam, of Tulsa, Okl., and Hiner & Pannill, of Fort Worth, for appellees H. B. Davenport, Nellie M. Moore and Mid-Kansas Oil & Gas Co.

Smith & Neill, of San Angelo, for appellees J. A. Chapman, Brown Oil & Royalty Co., and Indian Territory Royalty Co.

Don Emery, of Amarillo, for appellee Phillips Petroleum Co.

Walter L. Kimmel, of Tulsa, Okl., for appellee Hargrove Hudson.

McCLENDON, Chief Justice.

Questions arising in this cause have been twice certified to the Supreme Court. Questions embodied in the first certificate were answered. 122 Tex. 369, 61 S.W.(2d) 804. The second certificate was dismissed; the order reciting that the dismissal was "because it certified the whole case to this Court." In a per curiam opinion [(Tex. Sup.) 76 S.W.(2d) 1043, 1044], the following additional reason is given: "The certificate calls upon the Supreme Court to give an advisory opinion, which is not permitted. Morrow v. Corbin, 122 Tex. 553, 62 S.W.(2d) 641." Since a proper adjudication of the case now before us involves directly the proper construction and application of the answers to the questions first certified, and incidentally an interpretation of the dismissal order, we quote in full the body of the second certificate and of the appended tentative draft of opinion; the latter embodying in full the body of the first certificate:

"The above cause is pending in this court on appeal from a final judgment of the District Court of Travis County, 53rd Judicial District and upon answers of the Supreme Court to questions certified by this court.

"The question herein certified is material to a decision of the appeal, and grew out of the nature and result of the proceeding and the facts disclosed by the record before us.

"This is the same cause in which questions were certified to Your Honors on the 31st day of October, A. D. 1932, which bore No. 6388 on the docket of your court, and in which answers to the certified questions were certified to this court on the 30th day of June, 1933, embodied in an opinion by Associate Justice Pierson, reported in 122 Tex. 369, 61 S.W.(2d) 804.

"The case was thereafter re-set for oral argument in this court, and the parties requested either to re-brief the case, or file further briefs or arguments in the light of the answers of the Supreme Court to the certified questions, eliminating such questions or issues as were determined by such answers.

"From these briefs and arguments and the oral arguments upon the hearing, it develops that some of the original appellants are now asking an affirmance of the trial court's judgment; one of the appellants and a number of the appellees are asking a reversal; and the State is assuming an apparently neutral attitude.

"As the case is now presented, the controlling question arises over the proper construction of the answers of the Supreme Court to the questions certified. It is contended by those seeking reversal, on the one hand, that the answer of the Supreme Court to the first question certified to the effect that the first locative method (course and distance calls from the east line of Block Z) constitutes the proper method of locating the involved surveys, is controlling and determinative of the entire boundary controversy. It is contended by those seeking affirmance, on the other hand, that the answer to this certified question has merely eliminated from the case the third locative method which gave effect to the Durrell field notes calls for the river and other surrounding surveys; that the first locative method was not involved in the appeal, because:

"1st. There were no pleadings to support it;

"2nd. It is precluded under the `theory of the case' doctrine, since none of the parties contended for that method either in the trial court or in this court prior to the certificate, the only locative method contended for by any of the parties being the second and third.

"3rd. The trial court's judgment holding the Dod survey valid is supported by the pleaded and proved theory of agreement and/or estoppel, operating upon all the parties independently of the proper legal locative method. It is contended in this regard that the:

"`Certified question answered by the Supreme Court as to how the various surveys in Block 194 should be constructed is not the "very question" ruled upon by the lower court because it is not the true question presented by the pleadings and the evidence, therefore the decision of the naked question presented does not determine the case as plead and tried.'

"It is manifest, therefore, that a determination of this controversy as to the proper interpretation to be placed upon the answer of the Supreme Court to the first question certified is essential to and controlling of the decision in the case by this court.

"We have prepared and attach hereto as Exhibit `A' a tentative opinion in the case, drafted upon the hypothesis that the answer of the Supreme Court to the first question certified precludes consideration of the several grounds above enumerated, urged in behalf of those now seeking an affirmance of the trial court's judgment, and requires reversal of the trial court's judgment.

"In presenting the question in this form it is not to be understood that the holdings expressed in this tentative opinion represent conclusions which this court has reached. This form was used because it was thought that the question we are now certifying could be more clearly and accurately presented in this manner. The opinion does, we think, present the case most thoroughly in support of the decision it reaches.

"The issue involved presents a question of grave and serious doubt in our minds, and its final determination in advance of a final decree in this court appears to us most important.

"Your Honors are familiar with the circumstances under which the boundary questions involved in this and the companion California Case were reluctantly by this court certified to Your Honors. The considerations which induced this certificate are set forth in the attached tentative draft of opinion.

"The boundary question involved in this case affects a very large area and includes large portions of the Yates oil pool field. There are over 170 parties to the litigation, a great many of whom do not appear to be represented by counsel on appeal. The importance both to the State and the other litigants of having the boundary issue finally adjudicated was and is apparent. The main objective of our former certification was to obtain an adjudication by the Supreme Court which would be conclusive and leave nothing for further determination, in so far as concerns the true boundary of the involved surveys. This objective this court made a bona fide effort to achieve in certifying the boundary question to Your Honors, by predicating the questions certified upon the entire record in the case. The questions so certified were accepted and answered by Your Honors.

"The last paragraph of the Supreme Court's opinion in this case is cited and strenuously urged as supporting the above contention that the answer of the Supreme Court to the first question certified is academic and not determinative of the very question for decision in this case. That paragraph reads:

"`In answering the certified questions in this case, we have purposely avoided expressing any opinion on issues other than those involved in the questions certified.'

"The determination of the issue thus raised, involving as it does the proper construction of the Supreme Court's decision in answering the first certified question in this case is not only vital to our decision as above noted, but such determination prior to our decision will greatly facilitate an early adjudication in this case, the importance of which is apparent from the foregoing statement, and will no doubt be readily apparent to Your Honors in view of your intimate knowledge of the records and issues presented in the three companion cases....

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    ...assuming jurisdiction of this litigation in the present posture of the case arises from constitutional considerations. In Douglas Oil Co. v. State (Whiteside case), 5 81 S.W.2d 1064 (Tex.Civ.App.1935), Chief Justice McClendon writing for the Austin Court of Civil Appeals, discussed at some ......
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    ...the latter is merely the opinion of the judges or court, adjudicates nothing, and is binding on no one. Douglas Oil Co. v. State, 81 S.W.2d 1064, 1077 (Tex.Civ.App.--Austin 1935), rev'd on other grounds sub nom. Federal Royalty Co. v. State, 128 Tex. 324, 98 S.W.2d 993 As a prerequisite to ......
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