Full opinion text
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 ease 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 determina: tion 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. Tbe 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 sur; veys. This objective this court made a bona fide effort to achieve in certifying the boundary question to Tour Honors, by predicating the questions certified upon the entire record in the case. The questions so certified, were accepted and answered by Tour 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 Tour Honors in view of your intimate knowledge of the records and issues presented in the three companion cases. “Believing as we do that these considerations make it our duty to do so, we, therefore, certify to Tour Honors the following question : ... “Is the holding in the tentative draft of opinion hereto annexed, to the effect that the answer of the Supreme Court to the first question certified precludes consideration of the issues above stated under which an af-firmance of the. judgment of the trial court is now urged, correct?” The appended tentative draft of' opinion follows: ■ •• “This is a boundary suit. “As preliminary to a clear understanding of the questions involved, the opinions: of the Supreme Court in this (the Whiteside) Case, 122 Tex. 369, 61 S.W.(2d) 804, and in the companion California Case, 122 Tex. 377, 61 S.W.(2d) 807, and in the Smith-Turner Case [Turner v. Smith], 122 Tex. 338, 61 S.W.(2d) 792, are referred to with special reference to the map at page 791 [797] of 61 S.W.(2d) [122 Tex. 338]. We refer also to our opinion in the California Case (Tex. Civ. App.) 70 S.W.(2d) 452. “This suit, as originally brought by the State, involved all the area bounded on the west by Block Z, on the south by Block 178, on the east by the river surveys, and on the north by Runnels County School Land and other surveys immediately to the west thereof. Later by amended pleadings, the area in controversy was reduced to the 26 surveys in Block 194, bounded on the west by surveys 11, 10, 7 and 6, in Block Z, on the south by Block 178, and on the east by surveys 20, 21, 31, 32, 33 and 34, Block '194, and on the north by the north lines of surveys 35, 36, 37, 4 and 3, of Block 194. “Four methods of locating the surveys in Block 194 as advocatéd by various litigants in the three cases are set forth in the certificate of this court to the Supreme Court in this case, and copied in the Supreme Court’s opinion [122 Tex. 369, 61 S.W.(2d) 804, at pages 805, 808]. The first of these methods (course' and distance calls from the east line of Block Z) was adjudicated by the Supreme Court to be the correct method in this [122 Tex. 369, 61 S.W.(2d) 804, 806], as well as in the other two companion cases. The map at •page 797 of 61 S.W.(2d) [122 Tex. 338], is drawn in acordance with this method. The area involved in the Smith-Turner Case was the adjudicated vacancy delineated in this map as the shaded area between the Tates survey on the east, and the eastern tier of surveys in Block 194 on the west. The area involved in the California Case was 106 acres claimed to constitute a vacancy between sur,veys 34 and 35, Block 194, and the area contained in said two surveys. “The pleadings of the State upon which it went to trial are predicated upon the validity of the resurvey made by Captain Dod, in 1917, as supporting the second method; which method was adopted by the trial court in this case. The theory of the State in the Smith-Turner and California Cases was that the first method was the correct one. In this connection we quote from the Supreme Court’s opinion in the California Case [122 Tex. 377, 61 S.W.(2d) 807, at page 809]: “ ‘On the 17th day of November, 1932, the state filed in this court a brief, which is prefaced by- the following statement: “Since regard for’ established rules of law as we understand them and regard for. the State’s financial interest joined in impelling us to adopt the theory that we did adopt in behalf of the State in the Whiteside Case it has become necessary for us to say to this Honorable Court that- we consider the judgment in this case to be erroneous.” ’ “The appellants in this case áre Federal Royalty Company, Douglas Oil Company and California Company; of these only the Federal Royalty Company (owner of royalty interest in sections SO and 32, Bloch 194) is now seeking a reversal of the trial court’s judgment. The other two appellants now (since the Supreme Court’s adjudication of the boundary issue) ask affirmance of the trial court’s judgment upon the grounds stated below. “The Federal Royalty Company in its prayer for reversal is joined by appellees H. P. Davenport, Nellie M. Moore, and Mid-Kan1 sas Oil & Gas Company (royalty owners in sections 30, 31, 32 and 33, Block 194); by ap-pellee Shell Petroleum Company, whose interest is not stated in its supplemental brief; and by Stanolind Oil & Gas Company, styling itself appellant. “From the supplemental brief filed, by the State its present attitude appears to be one of neutrality. However, it submits certain suggestions, ‘in the event the ease is either (1) affirmed, (2) reformed and affirmed, or (3) reversed and rendered.’ “The contentions upon which affirmance of the trial court’s judgment is, now urged by the two appellants and the several appellees above named, stated substantially, are: “1. The pleadings upon which the trial was had will not support a judgment based upon the first locative method, because that method was not presented in the pleadings; and only the second and third methods were presented or contended for by the State or any of the parties litigant. “2. Under the ‘theory of the case’ doctrine as applied to the record made in the trial court and to the original assignments of error and briefs .of appellants in this court, the first method cannot be considered; since it was not presented by any party litigant. The judgment predicated upon the second method must, therefore, he affirmed, since the only other methods contended for were by the Supreme Court adjudicated invalid. “3. The pleadings and evidence sustain the issue that the Dod survey was agreed to and acted upon by all the parties to this suit, and they are now estopped from asserting its invalidity, independently of the proper legal method of locating the involved surveys. . “The issues presented by those contentions are entirely different from those preskited in the California Case and from those presented in this case prior to the Supreme Court’s adjudication ; and have necessitated a very careful re-examination and study of the entire record, in the light of the decision of the Supreme Court in answering the certified questions in this case. “We hold that these contentions cannot be sustained; and that the trial court’s judgment should be reversed and the cause,remanded generally,- under the conclusion - we have reached, which follows: “The boundary question in this case having been certified to the Supreme Court upon the entire record, the answers of the Supreme Cqurt to those questions constitute an ad1 judication binding upon this court that the first locative method is the correct one to be applied by this court in this case. 1. - - “The certificates in this and the California Cases are, we believe, unique, in that they are predicated, not upon any statement or finding of the certifying court, hut upon the entire records in the cases which were transmitted to the Supreme Court along with the certificates and -were- thereby made parts - of the certificates. This .court- was not unmindful of the fact that such method of certification was not in conformity with .the rules and that the certificates might therefore be,.subject to dismissal. This situation was communicated to the Supreme. Court, with .the resultant asr surance that a strict compliance with - the rules in the stated regard would not be im-sisted upon, in view of the importance of having before that court .prior to adjudication in the Smith-Turner Case all of the litigants whose interests- would he affected by the boundary decision in that case, and the complete records, in the several cases. Under these circumstances and with this assurance, the cases were certified. - “Counsel -insisting -upon an affirmance’ lay much stress upon the last paragraph of the opinion Of ’the Supreme Court in this case, which reads: “ ‘In answering the certified questions in this case, wé have purposely avoided expressing any opinion on issues other than those involved in the questions certified.’ “It is to be noted that this paragraph in identical language also concludes , the opinion in the California. Case. “Such would be the effect of the answers of the Supreme Court to the certified questions regardless of this express statement in the opinion; and while it may be unusual for such opinions to be thus expressly guarded, we are unable to conceive upon what theory this paragraph could have any essential bearing upon the proper construction to be placed upon the language of the certificate and the Supreme Court’s answer, as regards the meaning, scope and effect of such answer. Probably, in view of the volume of the briefs and records in both cases, the Supreme Court deemed it advisable as a measure of extreme precaution, to embody these paragraphs in the two opinions. One is manifestly copied from the other. However that may be, we are clear in the view that the Supreme Court’s answers to the certified questions are binding upon this court, not merely in the abstract as presenting the proper locative method under pleadings and other record matters not presented in this case, but as applied-to the entire record in this case which was transmitted to the Supreme Court along with the certified questions. “At the risk of some repetition, and in view of the importance of the questions now before us, we think it advisable to quote in full the body of the certificate transmitted by this court to the Supreme Court in this case: “ ‘This cause, which will be referred to as the Whiteside Case, and cause No. 7533 of the same style [70 S.W.(2d) 452] which will be referred to as the California Case (each pending in this court on appeal from a final judgment of the district court of Travis county, 53rd Judicial District), and cause No. 5395, Fred Turner, Jr., v. Mrs. M. A. Smith et al. [122 Tex. 338, 61 S.W.(2d) 792] pending upon your docket upon writ of error granted to the Court of Civil Appeals, 8th Supreme Judicial District, El .Paso (opinion of the latter court published in 13 S.W.(2d) 152, et seq.), are companion cases, in that they all involve the proper location of boundary lines of a number of surveys in Block 194 (G. C. & S. F. R. R. Co.), in Pecos County. Valuable oil deposits in what is known as the Yates oil field, from which large quantities of mineral oil are being produced, underlie the lands in suit; and the involved boundary controversy affects large property interests of the parties litigant including the state school fund. A final adjudication of the controversy as early as practicable is therefore urgent. “ ‘In view of .the holding in Porter v. State (Tex. Civ. App.) 15 S.W.(2d) 191 (error refused), and Blaffer v. State (Tex. Civ. App.) 31 S.W.(2d) 172 (error refused), that under the doctrine of stare decisis the binding effect of a final adjudication of the Supreme Court establishing a boundary line is not limited to those party and privy to the litigation, we deem it most important that all of the parties to all of these cases be accorded the right to a hearing in the Supreme Court before final adjudication in the Smith-Turner Case. These considerations have moved us to yield to a request of counsel for some of the parties in the Whiteside and California Cases to certify to Your Honors the issues involved in this boundary dispute. Under these exceptional circumstances and with the stated objective, it will not be practicable to make the certificates complete in themselves so as to preclude examination of the record; since to do so would impose limitations upon the parties in presenting their several views, constructions, and interpretations of the record as applied to the ultimate issues to be decided. Certificates so limited would leave open for subsequent review by writ of error questions involving interpretation of the certificates’ statements of the records; and to that extent the purpose of certifying would be defeated. We are, therefore, transmitting with the certificates the entire record in each case. “ ‘In the California Case the State’s suit was predicated upon the theory that Section 34, Block 194, is properly located by distance calls from the E. line of Block Z. The area involved includes Section 34 as thus located and a resultant vacancy east of Section 34. The proper location of Section 34 is directly, and that of Sections 33, 28 and 35 and Survey 34½ are incidentally in issue. “ ‘The area involved in the Whiteside Case includes Sections 4, 5, 7 to 19, 22 to 28, 31, 33 and 35 to 38, Blk. 194. “ ‘The boundary dispute arises from various discrepancies between course and distance calls in the field notes of Blocks 194 and 178 (concededly office surveys) for adjoinders with surrounding senior surveys, on the one hand, and the actual ground positions of the senior surveys, on the other. “ “The opinion of the El Paso Court in the Smith-Turner Case (Tex. Civ. App.) 13 S.W.(2d) 151, 161-166 gives a rather full statement of the documentary evidence introduced in that case, which constitutes, also, the major portion of such evidence introduced in the California and Whiteside Cases. Your Honors are already familiar with the record in the Smith-Turner Case. And since we are-making no fact findings in these certificates, it will only be necessary to set forth the several methods urged for establishing the boundaries in issue. “ ‘As we gather from the briefs there are four such methods advanced, which, for convenience of reference, we will designate by numbers. “ ‘First Method: “ ‘This method gives effect to the adjoinder calls in field notes of Block 194 for the E. and W. line of Block Z and for the lines of surveys in Block 12, hut rejects all other -ad-joinder calls for senior surveys to the south, north and east of the sections in Block 194 lying east of Block Z. Under this method the boundary lines in issue are established by course and distance calls from the E. line of Block Z. This method was urged below in the California .Case by the State and the Turner interests, and is still contended for by the latter. It was adopted by the trial courts in the California and Smith-Turner Cases. “ ‘In this connection and in connection with the second and third methods it should be noted that the N. E. corner of Block Z is established in 'both cases by projection frpm the eoncededly established S. E. corner of Block Z (Perry Hill corner) and the N. E. corner of Section 33, Block Z (Canyon corner). This latter corner was established by jury finding in the California Case and by court finding in the Whiteside Case. So located the E. line of Block Z has an excess of 30.2 varas per section. It is contended by appellees Beed et al. in the Whiteside Case that Block Z was an office survey, that Canyon corner was not proved an original corner, and that Block Z must be constructed by its field note calls from its established S. E. (Perry Hill) corner. The issue thus raised becomes material to each of the first three methods. “ ‘Second Method: “ ‘This method differs only from the first in that it does not reject the adjoinder calls in Block 194 for Block 178 or of the latter for Blocks C-3 and 0-4. It does reject the ad-joinder calls of Blocks 178 and 194 for Block 1, and of Block 194 for Runnels County School land. It establishes the S. E. corner of Section 7 Block C-3 at 7 miles plus 476 varas E. of Perry Hill corner, giving each of the intervening seven tiers of sections an excess width of 68 varas over field note calls, thus establishing the S. W. corner of Section. 7, Block C-3. at 1968 varas west of its S. E. corner. . From the thus established S. W. corner of Section 7, Block C-3 projected north the east lines of Sections 19, 22, 23 and 28, Block 194 are established, and each of the six tiers of surveys intervening between this line and the E. line of Block Z is given an excess width over call of 68 varas. The remaining involved sections (31, 33 and 35 to 38) are established by their course and distance calls except where the latter (distance) is modified by adjoinder calls to other established sections in Block 194. (See field notes of these sections in judgment at pages 661 to 663 of the transcript in the Whiteside Case). This method was contended for by the State and adopted by the trial court in the Whiteside Case, and is now urged by the State in its brief in this court. “ ‘It should be noted in this connection that the Turner interests (not parties to the White-side Case) reject the S. E. and S. W. corners of Section 7, Block C-3 as established in that' case, contending that the evidence in that regard was not developed in the Whiteside Case but that in the California Case the location was discredited or disproved. If this method is adopted, the issue thus presented will become material. “ ‘Third Method: “ ‘This method (contended for by Douglas Oil Company) gives effect to all adjoinder calls in Blocks 194 and 178 for surrounding surveys, disregarding where essential to such adjoinder, course and distance calls. This method necessitates s.ome equitable adjustment of the area involved among the affected sections in Blocks 194 and 178. A proposed such adjustment as to the Block 194 affected sections is presented in Douglas’ Oil Company’s map exhibit No. 95 in the Whiteside Case. Should this method be adopted the proper basis of apportioning the affected area will become material. “ ‘Fourth Method: “ ‘This method (contended for by appellees Reed et ¿1. in the Whiteside Case and in the alternative by Douglas Oil Company) disregards all adjoining calls in Blocks 194 and 178 for surrounding surveys, except the calls of Block 194 for Block 178, and establishes all of the survey lines in Blocks 178 and 194 by course and distance calls of intervening surveys from Pecos Springs comer. This method is exemplified in map exhibit No. 93 of Douglas Oil Company in the Whiteside Case. “ ‘For the reasons above outlined, we deem it advisable and our duty to certify for your decision the following questions: “ T. Which of the above four is the proper method to be applied in establishing the boundary lines of the involved survey? ' “ ‘2. If either of the first three is the proper method, is the N. E. corner of Block Z properly established from Canyon corner? . “ ‘3. If the second is the proper method, is the' S. W. comer of Section 7, Block C-3, properly established at the point fixed by the tí-iál court in the Whiteside Case; and if so did the trial court in that case adopt the proper method of fixing- from that established point the boundaries of the involved surveys? ;“.⅛. If the third method is adopted, what is the proper method of establishing the boundaries of the involved surveys from the called adjoinder points and lines, of surrounding senior surveys?’ “It will be noted that question 1 calls for the adjudication by the Supreme Court of ‘the proper method to be applied in establish-; ing 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 thé 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 sectiofis of block 394, and dismissed from the, case, among other defendants, Ered 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 thé state- -Is' in-accord in this case; the other making the Douglas,'Whiteside,-or Smith contention-for an adjoinder of the lines of block 194 with the river surveys on the east and Runnels county school land on the north.’ “In certifying the boundary question to the Supreme Court, we were not certifying a mere abstract or hypothetical question, but the concrete question before us based upon the entire record in the case, as a guide to this court in the judgment which should be rendered. “This was-unquestionably the construction which the Supreme Court placed upon the certificate. Smith-Turner Case, from page 794 of 61 S.W.(2d) we read: ‘“These cases'are being considered together, and a decision of each will be controlled 'by our holdings herein. The determination of these cases depends upon the legal niethod of locating on the ground block 194, G. C. & S. F. Ry. Company, in Pecos County, as surveyed by 1⅛ W. Durrell (an office survey) in 1883.’ “This language we think is clear and susceptible of but one construction. ‘A decision of each will be controlled by our holdings herein,’ clearly means that the Supreme Court’s holdings, should control a decision in the' instant case, based upon, the entire record certified. By the language, ‘the determination of these eases depends upon the legal method of locating on the ground block 194, G. C. & S. E. Ry. Company, in Pecos County, as surveyed by L. W. Durrell (an office survey) in 1883,’ manifestly was meant that this case as well as the other cases were to be determined by the legal method of location which was adjudicated in the Smith-Turner Case, and not by some other method, upon whatsoever predicated. ‘To determine’ is to settle, to end; and ‘to depend upon’ is to be suspended by as its only means of support. “The Douglas Oil Company in its brief as- ' serts as its first proposition in support of its contentions: “ ‘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 o-f the naked question presented does not determine -the case as plead and tried.’. “The effect of this proposition is that the first-locative method was in fact not involved in this case! and was academic, in so far.as this case is concerned. If this be. true then this court did a-useless-thing .in certifying this method in this case, and the Supreme Court did likewise in its answer, which, in so far as this case is concerned, was a pure abstraction. ‘If abstract questions are certified the Supreme Court has said very plainly it will not consider them.’ 3 Tex. Jur. p. 811, and authorities cited in Note 12.* “The very purpose of basing the certificates upon the entire record, as clearly expressed therein, was to obtain a decision' of the Su: preme Court which would be binding upon this court, and from which this court could render its final decision, and ‘not leave open for subsequent review by writ of error questions involving interpretation of the certificates’ statements of the record.’ No objection was made in- this court or in the Supreme Court to the certificate or to the questions certified. “Under these circumstances it seems quite plain to us that we are bound to apply the answer of the Supreme Court to the entire record in the case before us, since the questions were certified and the answer returned upon the entire record. “Since the case was tried upon the theories which the Supreme Court has held to be untenable, we believe the proper practice is to remand the case generally, without direction to the trial court, other than as may be implicit in the decision of the Supreme Court, as herein interpreted. “The trial court’s judgment is reversed and the cause remanded.” Since the dismissal of the second certificate a number of appellees, in addition to those already noted, have joined appellants Federal Royalty Company and P. S. Moore in seeking reversal of the trial court’s judgment. For the sake of convenience we will refer to all appellants and appellees now asking reversal as appellants, except where otherwise noted. Altogether some twenty additional briefs and arguments have been filed since the Supreme Court’s answers under the first certificate. It will not be practical to discuss in detail all the points urged by the several parties, or the cited authorities. AVe shall confine ourselves to a consideration of what we regard as the controlling issues in the’ case, under the conclusions we have reached as to its proper disposition. In drafting each of the certificates we were not unmindful of the rules that: (1) Only questions of law arising upon the record on appeal may be certified; (2) the answers to the questions certified are binding only as adjudications of those questions; and (3) the application of such adjudications to the record as determinative of the judgment, to be rendered by this court is not involved in the certificate or adjudicated by the Supreme Court’s answers. The unusual circumstances under which the first certificate was made upon the entire record, and without the usual and essential fact finding or statement by this court, are sufficiently stated above. The dismissal of the second certificate upon the stated grounds, if our construction of it is the proper one, may be helpful in interpreting the answers to the questions first certified. Of particular significance do we regard the second ground of dismissal, and especially the supporting reference to Morrow v. Corbin, 122 Tex. 553, 62 S.W.(2d) 641, 651, which reference requires some examination into that decision. Morrow v. Corbin, held invalid an act of the Legislature authorizing, in advance of adjudication, either interlocutory or final, certification by the trial court to .the Court of Civil Appeals of certain characters of law questions arising in pending cases. As we read the opinion, the act was declared invalid on two separate and distinct grounds: (1) That it authorized certification of questions calling for advisory opinions. t (2) That appellate jurisdiction is inherently limited to review of decisions or judgments, either interlocutory or final, of the inferior court, and the adjudication of questions of law in advance of such adjudication does not fall within its scope. The opinion cites and quotes with approval from the dissenting opinion in Darnell v. Lyon, 85 Tex. 455, 459, 22 S. W. 304, 305, 960, in which Chief Justice Stay ton held invalid the statute which authorizes certification from the Courts of Civil Appeals to the Supreme Court in advance of any decision by ‘the former. We believe that a careful study of that opinion will lead to the conclusion that Judge Stayton predicated his holding upon the sole ground that the jurisdiction sought by the statute to be conferred on the Supreme Court was not appellate, in that no consequential relief could be awarded by the Supreme Court; and not upon the ground that ■advisory opinions, in the sense that answers of the Supreme Court would not be binding upon the Court of Civil Appeals, were thereby sought to be authorized. This we think is clearly manifest from the first paragraph of the opinion, which reads: “There can he no doubt of the intention of the legislature to confer upon the supreme court jurisdiction of a question of law found in a case appealed to a court of civil appeals, although that court had made no decision of the question or cause, interlocutory or final in-character, nor can there be doubt of the intent to make the decision of the supreme-court on the question certified binding upon the court of civil appeals.” The gist of his holding is, we believe, embodied in the following quotation: “Jurisdiction of a given cause means the power to hoar and determine the right of the parties, as the judges of the court under their official oaths may think it ought to be, and to refer it to another court for a decision, and to simply register its decree as a rule of light between the parties is in no sense the exercise of jurisdiction.” The latter part of the opinion is devoted to the practice in federal courts under the Act of Congress of April 29,1802 (1 Stat. 156) authorizing in advance of decision certification of questions of law from circuit courts to the Supreme Court when the circuit judges disagreed. The concluding paragraphs of that discussion, which also conclude the opinion, read: “It is submitted that there can be no other ground than that it was necessary such jurisdiction should be exercised to enable the court to exercise the appellate jurisdiction conferred by the constitution. “The circuit courts could render no judgments when the judges disagreed, for there were but two judges, and their right to decide equal; and the necessity for a final judgment as the basis for a revision by that court was evidently the ground on' which the appellate jurisdiction of the supreme court, was based. “The reasoning through which such a result may have been reached may not be satisfactory to all minds, but on what other ground can the decisions be -based ? “Under the organization of the courts of civil appeals, no necessity arises-for a decision by this court, in first instance, of the qiiestions certified to this court. “If the ground suggested be nob that on which the supreme court of the United States exercise appellate jurisdiction on questions certified, and it be time that the holding was broadly that appellate jurisdiction existed without reference to the necessity for its exercise to secure a judgment final in its nature, which the court would have power to revise, then the inquiry arises whether this court should follow the decisions of that court, or decisions made by the supreme court of the republic, recognized by the supreme , court of ‘ this state, on the same question. Phillips v. Hill, 3 Tex. [397], 398. “I deem it my duty to follow the iatter, not only because the decisions made under the constitution of the republic were made upon an article of a constitution in all ma- - terial respects the same as that now in force here, and operative in this state, and may therefore be supposed to have been looked to as' furnishing a rule of interpretation or construction, 'but also because I believé the rule announced toy the supreme .court of the republic to be the only correct one to be applied to the matter now before this court.” Judge Stayton’s view thus appears to be that there was a conflict between holdings of the federal Supreme Court and those of the Texas Republic Supreme Court, unless they could be reconciled upon the ground stated by him; and that it was his conviction that, regardless of such conflict, the Texas cases should be followed, as being sound in principle. The following from Chief Justice Taney’s opinion in U. S. v. Stone, 14 Pet. 524, 525, 10 L. Ed. 572, decided in 1850, may throw some light upon the federal practice under the act of 1802: “We are aware, that in some cases, where the point arising is one of importance and difficulty, and it is desirable, for the puipose of justice to obtain the opinion of this court, the judges of the circuit court have sometimes, by consent, certified the point to this court, as upon a division of opinion; when, in truth, they both rather seriously doubted, than differed about it. We do not object to a practice of this description, when applied to proper cases, and on proper occasions. But they must be cases sanctioned by the judgment of one of the judges of this court, in his circuit. A loose practice in thig respect might render this court substantially a court for the original decision of all causes of importance: when the constitution and the laws intended to make it altogether appellate in its' character; except in the few cases of original jurisdiction enumerated in' the constitution.” Later holdings of the federal Supreme Court sanction the practice of certification, in advance of decision, of law questions from inferior courts to that court, even when there is no disagreement of the judges of the certifying court. In the comparatively recent case of Wheeler Lumber Co. v. U. S., 281 U. S. 572, 50 S. Ct. 419, 420, 74 L. Ed. 1047, 1051, the subject is discussed, at some length, with citation of authorities. In that case the court answered a question certified by the court of claims under U. S. C. title 28, § 288 (28 USCA § 288). We read from the opinion: “This is a new provision. Similar provisions have permitted particular federal courts to certify questions to this Court, but this provision is the first giving such authority to the Court of Claims. “There are two reasons why a certification by that court which embraces the whole case cannot be entertained by this Court. One is that to accept such a certification and proceed to a determination thereon, in advance of a decision by that Court, would be an exercise of original jurisdiction by this Court contrary to the constitutional provision which prescribes that its jurisdiction shall be appellate in all cases other than those affecting ambassadors, other public ministers and consuls, and those in which a State shall be a party. Article 3, § 2, cl. 2. The other is that the statute permits a certification only of ‘definite and distinct questions of law.’ “Even the restricted certification permitted by the statute invokes action which is rather exceptional in the appellate field. But that such action is appellate is now settled. Early and long-continued usage amounting to a practical construction of the constitutional provision requires that it be so regarded.” Two of the recent “gold clause” cases (those involving United States gold certificates and bonds) were carried to the Supreme Court from the Court of Claims upon certificates. Nortz v. U. S. (U. S.) 55 S. Ct. 428, 79 L. Ed. -, 95 A. L. R. 1346 and Perry v. U. S. (U. S.) 55 S. Ct. 432, 79 L. Ed. -, 95 A. L. R. 1335. The practice of review by certification is in vogue in a number of the states. 3 Corpus Juris (pp. 989 et seq.) lists twenty-four. Several have been added since the publication (1915) of that volume. Whatever view may be taken of the basis of jurisdiction entertained under the act of 1802 at the time Judge Stayton wrote his dissenting opinion, it is clear that the present holding of the federal Supreme Court presents a conflict with the early Texas decisions, and that the view of Judge Stayton was to the effect that certification from an inferior to an appellate court, in advance of decision by the former, is to invoke original, and not appellate, jurisdiction. The expression “advisory opinion” ordinarily connotes the practieq which existed in England from very early times of extrajudicial consultation of the judges by the Crown and House of Lords. The latest edition (1934) of Webster’s Internationa] Dictionary gives this definition: “Advisory Opinion: A formal opinion by a judge or judges, or a court or a law officer upon a question of law Submitted by a legislative body or a governmental official, but not actually presented in a concrete case at law. Such opinions have no binding force.” , The practice was embodied in the first Constitution (1780) of Massachusetts; and later in the Constitutions of the following, states: New Hampshire, 1784; Maine, 1820; Rhode Island, 1842; Missouri, 1865 (repealed 1875); Florida, 1868; Colorado, 1886; South Dakota, 1889. In a few states advisory opinions have been given under supporting statutes in the absence of constitutional authority; one state (Minnesota) holding such a statute unconstitutional. In a small number of states advisory opinions have at times been given without supporting authorization either constitutional or statutory. The literature upon this subject is quite extended. The following treatises may be noted: Ellingwood’s “Departmental Cooperation in State Government” (1918);: Hudson on “Advisory Opinions of National' and International Courts,” 37 Harvard Law Review, 970 (June, 1924), with appended note by Felix Frankfurter (Id. p. 1002); 15 C.-J. p. 785 et seq. The giving of advisory opinions is generally recognized as a nonjudicial function; and except as noted above has not been practiced in any of the American states. An authorizing provision was proposed in the-Federal Constitutional Convention, but was defeated; and the Supreme Court of the-United States has always declined to recognize it as within its constituent authority. This view, held also by the state courts except as noted, is a necessary conclusion from the constitutional separation of the powers-of government into the three departments, executive, legislative, and judicial, and the-essentially implicit deduction that, absent express constitutional authorization, none of' these departments may exercise any of the powers inherently pertaining to another. While historically, and as a consequence technically, “advisory opinion” is limited by the above definition, the courts .latterly have extended the expression to questions presented which do not arise in such a manner as to admit of a binding adjudication of contested rights of the litigants 'before them; such, for example, as abstract, hypothetical, and moot questions. In principle, at least, the doctrine of obiter dicta is bottomed upon the same general interpretation of the judicial function. The Anway Case (Anway v. Grand Rapids R. Co.), 211 Mich. 592, 179 N. W. 350, 12 A. L. R. 26, cited in Morrow v. Corbin, was one in which the Supreme Court of Michigan by a divided court in 1920 held unconstitutional a statute of that state authorizing declaratory judgments. The dissent arose over the construction of the statute; all the judges concurring in the disposition made of the case before the court. The majority construed the wording of the statute as including cases calling for advisory opinions ; the minority, while agreeing that the case at bar fell within that classification, held that the statute was not intended to include such cases. In the cited subsequent (1930) case by the same court (Washington-Detroit Theatre Co. v. Moore, 249 Mich. 673, 229 N. W. 618, 68 A. L. R. 105), the court unanimously upheld a later statute of Michigan authorizing declaratory judgments, which eliminated the character of cases, the construed inclusion of which was held to invalidate the prior act. In the meantime, some thirteen states had passed declaratory judgment statutes, which were uniformly upheld. Probably the leading case upon the subject is by the Supreme Court of Kansas. State ex rel. v. Grove, 109 Kan. 619, 201 P. 82, 19 A. L. R. 1116. The basic announced principle upon which these statutes ai'e upheld is that judicial power “is not dependent upon any right in the parties to the litigation to consequential relief.” In other words, the judicial function embraces the adjudication of the rights of litigants in cases • of actual, bona fide controversy, even though no consequential relief is sought or can be awarded at the time. Due to expressions in some of the opinions of the United States Supreme Court (notably the opinion of Mr. Justice Brandeis in Willing v. Chicago, etc., 277 U. S. 274, 48 S. Ct. 507, 510, 72 L. Ed. 880), it was thought that that court would not under any circumstances review decisions of state courts rendering declaratory judgments, and that Congress did not have the power to authorize declaratory judgments by the federal courts. In an opinion concurring in the result in the Willing Case, Mr. Justice Stone excepted to a declaration in this regard" on the ground .that the question was not then involved. He concludes: “There is certainly no ‘case or controversy’ before us requiring an opinion on the power of Congress to incorporate the declaratory judgment into our federal jurisprudence. And the determination now made seems to be very similar itself to a declaratory judgment to the effect that we could not constitutionally be authorized to give such judgments — but is, in addition, prospective, unasked, and unauthorized under any statute.” On February 6, 1933, the United States Supreme Court, in a unanimous decision (opinion by Mr. Justice Stone), entertained jurisdiction in a declaratory judgment suit from the Supreme Court of Tennessee. The gist of the decision is given in the following headnote: “A ‘case’ or ‘controversy’ within the power of the Supreme Court of the United States to review is presented by a proceeding in a state court for a declaratory judgment as. to the validity of a tax law, where the provisions of the state statute authorizing such proceeding may only be invoked when the complainant asserts rights which are challenged by the defendant and presents for decision an actual controversy to which he is a party, capable of final adjudication by the decree or judgment to be rendered, and no judgment or decree may be rendered thereunder unless all those who may be adversely affected by it are before the court, and when so rendered it has the force and effect of a final decree.” Nashville, Chattanooga & St. Louis Ry. v. Wallace, 288 U. S. 249, 53 S. Ct. 345, 77 L. Ed. 730, 87 A. L. R. 1191. Complete annotation on the subject may be.found in 87 A. L. R. 1205; 68 A. L. R. 110; 50 A. L. R. 42; 19 A. L. R. 1124; 12 A. L. R. 52. No doubt influenced by the holding in the Wallace Case as to its powers in this regard, the Congress, on June 14, 1934, enacted a declaratory judgment statute (28 USOA § 400), the validity of which has not yet been passed upon by any of the federal courts except inferentially, where it was applied in two cases by the United States District Judge for the Southern District of Mississippi. Memphis, etc., v. Gully (D. C.) 8 F. Supp. 169; Interstate, etc. v. Gully (D. C.) 8 F. Supp. 174. Measured- by the. adjudicated cases at this time, the validity of the declaratory .judgment as a proper judicial function may ’be regarded as established in American jurisprudence. The essential difference between the declaratory judgment and the purely advisory opinion lies in the fact that the former is a binding adjudication of the ■contested rights of the litigants, though unaccompanied by .consequential relief; where.as, the latter is merely the opinion of the .judges or court, adjudicates nothing, and is binding on no one. The former is held to be the exercise of a strictly judicial function; the latter that of a wholly non or extra judicial function; a distinction recognized in the two cited cases. Morrow v. Corbin, while following the ■early Texas decisions, and the dissenting opinion of Chief Justice Stayton, upheld the statute authorizing certification in advance ■of decision by Courts of Civil Appeals to the Supreme Court upon three grounds (as we read the opinion): (1) “In all cases heretofore cognizable by certified question there have been actual trials and final judgments which the appellate courts may set aside, reform, o'r affirm and enforce under their appellate powers”; (2) the statute has been followed for forty years, and “the question being one of practice in which the power has beeri consistently exercised for a long period ■of time, with no substantive right of. the citizen involved, we will presume that there existed then and that there exists now a constitutional basis for the law, although elusive to us, and sustain the statute”; (3) the readoptión of section 3 of article' 5 of the Constitution, as amended in 1930, without change except as to the term of court carried with it the “construction previously placed thereon by the Legislature in enacting the certification statutes, and of the courts in treating the law as valid by acting thereunder.” Immediately following this portion of the opinion is this paragraph: “We know of no rule by which the constitutional basis for existing certification statutes may be extended to the act before us, which calls for advisory action only, and requires no judgment or decree upon which the appellate power of the revisory courts may .act.” The opinion clearly holds that certification in advance of any decision, interlocutory or final, is a request for an advisory opinion. But this application of the term is not, we think, predicated upon the holding that such opinion would not be binding upon the parties as an adjudication of the question cer- ' tified, but upon the holding of Judge Stay-ton, that consequential relief (the power of the court itself to enforce its decisions, and not merely to refer them to some other court for enforcement) is essential to jurisdiction. Our present inquiry extends only to a determination of the basis of the holding in Morrow v. Corbin, and its application in the dismissal opinion, as it may have bearing upon a proper interpretation of the answers under the first certificate, and not to any seeming inconsistency between that holding and those in other classes of cases in which jurisdiction has been entertained under apparently analogous circumstances; such for example as the construction of wills, removing cloud from title, adjudication of claims and liens for certification to the probate court, and of claims against the state, when permission to sue has been authorized. As above shown, the second ground of dismissal of our second certificate reads: “The certificate calls upon the Supreme Court to give an advisory opinion; which is not permitted. Morrow v. Corbin.” The difficulty we have is in .reconciling this holding under the supporting citation, with the inclusion in Morrow v. Corbin, within the definition of advisory opinion of answers to certified questions in advance of decision. Manifestly it was not intended in the dismissal opinion to depart from the practice of entertaining jurisdiction of certification by Courts of Civil Appeals in advance of decision; a practice which was expressly upheld in Morrow v. Corbin. We must, therefore,' conclude that, as interpreted by the Supreme Court, the question' certified embraced some other element which would ■bring its answer within the category of advisory opinions. It was not our purpose to propound such a question to the Supreme Court. Nor was it our purpose, in either certificate, to certify the whole case. The question which it was our purpose to ask in the second certificate was whether, in view of the first certification of the proper locative method upon the whole record, the answer to the first question certified was res judicata of the issues of pleading, theory of the case, agreed boundary, and estoppel. The tentative draft of opinion appended to the certificate was merely for the purpose of showing the respective contentions of the parties in this regard, stating in the strongest light in which we could view them the contentions of those asserting that this answer was res judicata of those issues. In other words, we sought merely an adjudication of the scope of the answer of the Supreme Court as an adjudication binding upon this court. So interpreted, we are unable to see how the certificate can be construed either as calling for an advisory opinion or as certifying the whole case. We do not understand the rule to be that the whole case is certified, solely because the answers to the questions may be determinative of the entire case. We are constrained to the view that the Supreme Court must have given some other interpretation to our certificate than we intended, as above expressed, and that we were unfortunate either in its form or wording, in our effort to convey our thought. The dismissal opinion does not intimate in what way the stated grounds of dismissal apply to the question certified. However, the opinion introduces a quotation from our certificate with the following: “In describing the ‘tentative draft of opinion’ the certificate states.” The significance of this statement and the quotation following it, lies, it seems to us, in the implication that the question certified sought advice from the Supreme Court as to how we should apply the answers to the questions first certified in a final disposition of the appeal, and not merely an answer to the above question of law which it was our purpose to certify. To answer such question would, of course, require examination of the entire record, and virtually transfer the entire case to the Supreme Court. A careful re-examination of our first certificate and the Supreme Court’s answers thereon, in the light of the dismissal opinion, leads us to' conclude that the Supreme Court did not regard the issues embraced in the question in the second certificate as involved in the first certificate, or as being adjudicated .by its answers thereon. We do not think it necessary to review the decisions of the Supreme Court upon the effect of. their answers to certified questions. The rules in this regard are well established by repeated adjudication. In the main they are substantially the same as those applied by the Supreme Court of the United States in certificates to that court, and in large measure by the several states under declaratory judgment statutes in determining whether a justiciable controversy is presented. Suffice it to say that the answers of the Supreme Court are res judi-cata of the questions of law certified, but do not determine, and are not res judicata of, the application of the answers to the final adjudication to be made by the Courts of Civil Appeals. Of course, the Supreme Court will not consciously answer abstract questions, and has the power, no doubt, aliunde the certificate, to ascertain whether the question, is in fact abstract, even though the certificate, as is proper and requisite, states that “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.”' The answers to the first certificate cannot, we think, be treated as abstract or hypothetical, and this especially so since the Supreme ' Court entertained jurisdiction with the entire record before them as a part of the-certificate. The problem now before us is to determine: What do the answers adjudicate in this case? It will be noted that in our first certificate we said that, “since we are making no. fact findings, it will only be necessary to set forth” the several locative methods contended for in the two cases (Whiteside and1 California). It was assumed, of course, that there was but one proper method of locating the true lines in each of the three cases,, since they all were parts of a single block of surveys, made at the same time by projection as an office survey purely; and this, assumption seems also to have been made by the Supreme Court. It seems clear that in entertaining jurisdiction under certification upon the entire record, without fact finding by this court, the Supreme Court must necessarily have examined the facts in each of the-three cases sufficiently to determine that upon the record presented the first was the-proper locative method in each case. To this extent, and to this extent only, do we think the answer of the Supreme Court is res-judicata in either of the two cases certified. Erom a careful examination of the first certificate, the Supreme Court’s answers, the-Smith-Turner opinion, and the dismissal opinion, we conclude that it was not the-purpose of the Supreme Court to do more than adjudicate the proper locative method, based upon the facts shown by the records, in the three cases, leaving it to this court to-apply that method in each of the cases certified, and render such judgtnent as due regard to such method would require. Whether the parties, in either case, had by their pleadings, admissions, case theories, agreed boundary, estoppel, or otherwise, precluded themselves from, having that method applied, we -think was not adjudicated. This, we be