Federal Royalty Co. v. State

• Decision Date: 25 November 1936
• Docket Number: No. 6958.,6958.
• Citation: 98 S.W.2d 993
• Parties: FEDERAL ROYALTY CO. et al. v. STATE et al.
• Court: Texas Supreme Court

Page 993

98 S.W.2d 993

FEDERAL ROYALTY CO. et al. v. STATE et al.

No. 6958.

Supreme Court of Texas.

November 25, 1936.

Error to Court of Civil Appeals of Third Supreme Judicial District.

Suit by the State of Texas against the Federal Royalty Company and others. To review a judgment of the Court of Civil Appeals [81 S.W.(2d) 1064], affirming a judgment of the district court, the Federal Royalty Company and others bring error.

Judgment of the Court of Civil Appeals and the judgment of the district court reversed, and cause remanded.

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

R. C. Gwilliam, of Tulsa, Okl., Hiner & Pannill, of Fort Worth, and A. M. Gee, of Findlay, Ohio, for Davenport, and others.

A. D. Dyess, of Houston, for R. S. Moore.

Robert T. Neill and Smith & Neill, all of San Angelo, and Turner, Rodgers & Winn, of Dallas, for Stanolind Oil & Gas Co.

Bryan, Stone, Wade & Agerton and Oliver W. Fannin, all of Fort Worth, for Imperial Royalties.

C. R. Wharton, of Houston, for Royalty Owners in Survey 35.

John A. Braly, of Fort Worth, for Peerless Oil & Gas Co.

W. A. Keeling, of Austin, Charles Gibbs, of San Angelo, Francis H. DeGroat, of Duluth, Minn., and Charles A. Holden, of Tulsa, Okl., for Douglas Oil Co.

William McCraw, Atty. Gen., James V. Allred, former Atty. Gen., H. Grady Chandler, Asst. Atty. Gen., Ralph W. Yarborough, of Austin, and George T. Wilson, of San Angelo, for the State.

F. A. Williams, of Galveston, R. L. Batts, of Austin, John E. Green, Jr., of Houston, and P. O. Settle and Wm. L. Wise, both of Fort Worth, for Gulf Production Co.

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

E. H. Yeiser, of Austin, for Perry, Reed and others.

Collins, Jackson & Snodgrass, of San Angelo, for Western Oil & Royalty Co.

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

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

Don Emery, of Amarillo, for Phillips Petroleum Co.

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

HICKMAN, Commissioner.

This case, known as the Whiteside Case, is closely related to two other cases, one known as the California Case and the other as the Smith-Turner Case. Much has been written by this and other courts in these cases, to which, under our views of the narrow question now presented for decision, but little need be added. A complete history of these cases may be had by referring to the following opinions: Smith v. Turner (Tex.Civ.App.) 13 S.W. (2d) 152; Turner v. Smith, 122 Tex. 338, 61 S.W.(2d) 792; Douglas Oil Co. v. State (California Case), 122 Tex. 377, 61 S.W. (2d) 807; Id. (Tex.Civ.App.) 70 S.W.(2d) 452. The opinion of this court answering certified questions in this case is reported in Douglas Oil Co. v. State, 122 Tex. 369, 61 S.W.(2d) 804, 805; the opinion dismissing a second certificate is reported in 124 Tex. 232, 76 S.W.(2d) 1043, and the opinion of the Court of Civil Appeals is reported in 81 S.W.(2d) 1064, 1072.

At the time this suit was tried, the Smith-Turner Case was pending in this court and the California Case was pending in the Court of Civil Appeals. All three cases presented for decision the controlling question of the proper method of constructing block 194, G. C. & S. F., in Pecos county. One method was applied in the trial court in the first two cases and a contrary method applied in this case. When this case reached the Court of Civil Appeals, both of the other two cases were still pending, and, since it was apparent that all presented the same question of law, that court certified certain questions in this case and the California Case to this court. All three cases were considered together by this court upon the whole record. The certificate in the instant case defined the four suggested methods for establishing the boundaries in issue and called upon this court to determine which of these methods was the proper one to be applied. This court released opinions in all three cases on the same day, making its opinion in the Smith-Turner Case the basic opinion. In answer to the certified questions in this case, it was held that the proper method was to establish the boundary lines in issue by course and distance calls from the east line of block Z, disregarding the adjoinder calls for senior surveys to the south, north, and east of block 194. After the answers to the certified questions were returned to the Court of Civil Appeals, that court prepared a tentative draft of opinion reversing the judgment of the trial court, and then again certified a question to this court accompanying its certificate with a copy of its tentative draft of opinion. The second certificate was dismissed. 124 Tex. 232, 76 S.W.(2d) 1043. Apparently because of the reasons assigned by this court for dismissing the second certificate, the Court of Civil Appeals then construed the effect to be given to the answers to the questions in the first certificate differently from the construction suggested in its tentative draft of opinion and entered judgment affirming the judgment of the trial court. The opinion of Chief Justice McClendon of the Court of Civil Appeals sets out in full the draft of the tentative opinion, which itself embodies the entire original certificate to this court. We are well convinced, after mature consideration, that the tentative draft announced correct principles governing the decision of this case. We therefore adopt and make our own the following language taken therefrom:

"It will be noted that question 1 calls for the adjudication by the Supreme Court of `the proper method to be applied in establishing the boundary lines of the involved surveys.' `Involved surveys' was intended to mean and could only mean the surveys involved in the particular case certified. `Proper method' was intended to mean and could only mean the method which under the entire record in this case, including the pleadings and other matters of record from which the theory of the case could be determined, this court must render judgment in so far as the boundary issue was concerned.

"That the Supreme Court was fully cognizant of this construction of the questions certified, appears we think affirmatively from the expressions in the opinions of that court.

"In its opinion in this case the Supreme Court expressly adverts to the fact that this court `has certified for our determination upon the whole record in the case questions based upon said methods as follows':

"That the Supreme Court was fully cognizant of the issues raised by the pleadings and by the contentions of the respective parties in the respective cases, and that the first method was not urged by any party in this case, affirmatively appears from the following quotation from its opinion in this case:

"`This amended petition omitted the eastern tier of boundary sections of block 194, and dismissed from the case, among other defendants, Fred Turner, Jr. This left in the case two groups of defendants; one making the Yates contention that surveys in block 194 should be given an excess west to east of 68 varas to the mile by projecting a meridian northward from the position asserted to be the southwest corner of survey 7, block C-3, with which contention the state...