partially concurring and partially dissenting.
I agree with the majority of this court that summary judgment in favor of the defendants was improperly entered. I do not doubt that the central issue sought to be presented by the plaintiff and adversely adjudicated by the district court’s judgment is whether plaintiff had a right of condemnation under the constitution and laws of Wyoming. However, to vary slightly the metaphor suggested by Mr. Justice Rooney, I would say that plaintiff never got its train on the track. His analysis of the facts and authorities is to me completely satisfactory and I shall not elaborate thereon except to add that it is difficult for me to conceive how a general description of legal subdivisions totaling 1,680 acres of land, only a part of which could be included in the roadway, can be considered a description of the property to be taken sufficient for its identification. The maxim that that is certain which can be made certain is in my view completely inoperative in such a situation. There is nothing in the description in the complaint which even the most competent surveyor could use to come up with an accurate description of the proposed right of way. The statutes require that the requested right of way be described, not the legal subdivisions that it will traverse. Also, I think it an essential element, to be alleged and established at the outset of the proceedings, why the right of way is needed by the condemnor. Even assuming that general allegations of necessity may be filled in by proof of facts showing need, the omissions in the complaint were never corrected by the proof. We cannot then pro*415ceed on the basis that the complaint may be considered as amended. I therefore agree with Mr. Justice Rooney that the complaint was insufficient in so many ways that the district court was without power to proceed, either in the ordinary way to establish the necessity of the taking and then assess damages for the land taken, or to enter declarations concerning the existence of the claimed right.
If Mr. Justice Rooney and I are right that the complaint should have been dismissed, the question arises as to why we do not advocate affirmance of the dismissal of the complaint. To me the answer lies in the fact that the judgment speaks to the merits of the case, a point I think should never have been reached. Thus, the judgment recites:
“On due consideration of the records and files in this matter, the original and amended pleadings, the testimony of plaintiff’s witness and the exhibits introduced by plaintiff, and the oral argument of counsel for the respective parties, and being fully advised in the premises, the court finds generally for the defendants and against the plaintiff on all issues.” (Emphasis added.)
It is then ordered that defendants’ motion for summary judgment against plaintiff be granted and the complaint dismissed.
This is a judgment upon the merits of the case. It is an adjudication that no method exists by which under the constitution and laws of Wyoming one who seeks to explore for oil and gas and needs access to his leased lands across the lands of another may secure such right. It would stand as res judicata as to the rights of this plaintiff and these particular defendants and prevent the filing and prosecution of a proper action to determine that right, either by ordinary condemnation proceedings or by declaratory judgment. It might also have some standing as precedent as the only judicial interpretation of our constitution and statutes. Such a judgment is not proper at this stage of the proceedings.
This court does not seem to have specifically considered the difference between summary judgment and dismissal, whether for lack of jurisdiction or failure to state a claim, but the distinction is clearly explained in 10 Wright & Miller, Federal Practice and Procedure, § 2712, p. 386, et seq.:
“. . .A summary judgment motion goes to the merits of the case and, because it does not simply raise a matter in. abatement, a granted motion operates to merge or bar the cause of action for purposes of res judicata. A litigant cannot amend as a matter of right under Rule 15(a) after a summary judgment has been rendered against him and a court ordinarily will be reluctant to allow leave to amend to a party against whom summary judgment has been entered, especially in the absence of a showing that the defect that gave rise to the grant of the motion will not affect the new pleading.”
The authors consider summary judgment an inappropriate vehicle to attack a court’s jurisdiction and comment that generally the courts hold that it is improper for a district court to enter a judgment under Rule 56 for defendant because of lack of jurisdiction. They then comment:
“The rationale for this conclusion, although somewhat metaphysical, is sotmd. If the court has no jurisdiction, it has no power to enter a judgment on the merits and must dismiss the action. In addition, a dismissal for want of jurisdiction has no res judicata effect and the same action subsequently may be brought in a court of competent jurisdiction. A summary judgment, on the other hand, is on the merits and purports to have a res judicata effect on any later action. The court’s role on the two motions also is different. On a motion attacking the court’s jurisdiction, the district judge may resolve disputed jurisdictional fact issues. On a motion under Rule 56 he simply determines whether any issues of material fact exist that require trial. * * * Furthermore, it should be remembered that under Rule 12(h)(3) the court may consider a question of subject matter juris*416diction at any time and even raise it on its own motion. Accordingly, the label attached to the motion should not prevent the court from deciding a summary judgment motion challenging the court’s subject matter jurisdiction as a suggestion that the court dismiss the action on that ground.” Id., § 2713, p. 404, et seq.
It is of course true that the main thrust of the plaintiff’s case was to secure an adjudication as to its right to condemn a right of way across lands adjacent to its lease. It is possible that no specific location for the proposed well has been settled upon so that a complete description and a complete exposition of the necessity for the right of way was considered unnecessary. The question whether Wyoming’s eminent domain statutes are applicable to oil and gas operations is not new, although to my knowledge this is the first case to reach the courts. The disposition of the case made by this court today may well settle the question and result in negotiation of the parties, effecting a settlement of the dispute. It may also prevent such disputes in the future. This empirical goal may induce the majority’s willingness to proceed upon a very doubtful record. It is tempting to me, but I think that what results is an advisory opinion, without proper factual básis. Unless and until plaintiff can present to the proper court a complaint that complies with, the requirements of the statute, I agree with my Brother Rooney that we should not subject landowners to the cost and vexation of eminent domain proceedings.
I would reverse the summary judgment and remand the case with directions to dismiss the complaint but with permission to the plaintiff to file an amended complaint in compliance with the law. If alternative remedies are sought under different statutes, then the complaint should contain the allegations pertinent and basic to either theory to be presented by the plaintiff.