dissenting.
This is the third time that Unit No. 50 in the Gwinville gas field has come under review by this Court. The first occasion was in the case styled Superior Oil Co. v. Griffith, 214 Miss. 891, 59 So. 2d 104. The Magees were the "et al” in that case. In the proceeding, the Oil Company petitioned the State Oil & Gas Board, under Chapter 220, Laws of 1950, for the establishment of Unit 50 in order to integrate the entire acreage therein, and thereby effect forced pooling of interests and the extension of the original term of the leases. It did not proceed under Chapter 256, Laws of 1948, for the evi*879dent reason that, under Section 10 thereof, forced integration and pooling of more than 40 acres was forbidden.
The Unit, as sought to be approved, contained, according to the description, 320 acres. These lands had been described on the plat which was filed with and approved by the Board, and in the operative agreements, and in the recorded designation of the Unit. Besides, the Board had assigned allowables for each month since February 1950, shortly after the well’s completion. In other words, the Oil Company offered proof before the Board as to all acts and proceedings theretofore had in connection with the unit.
The original leases did not contain pooling agreements. The appellees therein were willing for their lands to be included in the Unit, but only on the condition that the same would be treated as unleased. The primary terms had actually expired when the order of integration was finally adopted. Thus the forced pooling of interests and the extension of the original term of the leases became the heart of the controversy.
On appeal, the circuit court reversed the order of the . Board. However, on appeal here, this Court upheld and reinstated the original order of the Board. ' The opinion stated however that this was done “without adjudicating the effect of such order upon the nature and extent of the rights of the respective owners”. It also took note of an error of 20 acres in the description of the Unit, and withheld approval as to that part of the order.
After the original decision, a suggestion of error was filed. In passing thereon, 60 So. 2d 505, the opinion declared that Unit 50 was invalid because the 20 acres in question was non-contiguous; that it was necessary for the Unit to contain 320 acres, unless an exception was granted; and that the conditions for an exception did not exist. Hence this Court would not correct the order so as to include acreage different from that which was *880approved by the Board, as its only authority was to affirm or reverse for further proceedings. Besides a discrepancy had been called to the attention of the Board at the time of the hearing, and nothing came of it.
In other words, the records showed that all of the steps which had been taken in the attempt to form and establish Unit 50 (and which are now said by the majority opinion to have constituted a de facto unit) were adduced before the Board, were considered by the circuit court on appeal, and, in turn, came to the attention of this Court. In the opinion, invalidating the unit, it was said: “* * we withdraw our former opinion to the extent that the same reverses the order of the circuit court wherein that court had reversed the order of the State Oil and Gas Board as to the integration order of Unit 50, and we now affirm the action of the circuit court as to said Unit 50 and remand the cause without prejudice for such further proceedings before the State Oil and Gas Board that any person interested may desire to institute for obtaining a valid order of integration of the lands and leases in said unit, it being our opinion that the appellees, or at least the appellee, Mrs. Mabell G. Magee, have a sufficient interest in having Unit 50 legally integrated as to be entitled to raise this issue of discrepancy, even though none of the appellees own any interest in either of the 20 acres in regard to which the error occurred.”
Thus the Court invalidated Unit 50 and remanded the cause to the Board for such proceedings as might be taken, with the Magees as necessary parties, in order validly to integrate the lands in the Unit. The appellant did not follow up with additional proceedings before the Board. It did nothing further before that tribunal. So when the present cause was tried in the chancery Court, the previous opinion of this Court, supra, holding Unit 50 to be invalid, was staring the chancellor in the face. He heard the same subject matter, which *881was presented by tbe same parties as in tbe former cause in tbis Court. Since tbis Court bad said tbat Unit 50 was invalid, undoubtedly be was of tbe opinion tbat be should follow a solemn pronouncement of tbis Court. Thus be held tbat tbe Unit bad been invalidly created as to tbe appellees, and, in my opinion, rightfully awarded relief.
Tbe majority opinion bolds tbat, owing to tbe nature of tbe remand, tbe Court, in its opinion on suggestion of error, made no final determination of tbe matter. But it is inescapable tbat tbis Court adjudicated tbat Unit 50 was invalid. Since tbe parties and tbe real controversy were tbe same in both instances, I think tbat res judicata ought to be applied. Tobias v. Tobias, (Miss.) 83 So. 2d 638, and authorities there cited.
Being of tbe above opinion, I do not think tbat Humble Oil & Refining Co. v. Hutchins, 217 Miss. 636, 64 So. 2d 733, is applicable. Consequently, I would affirm tbe decree of tbe trial court.