This is a boundary suit, in which the judgment below was reversed because of a charge by the trial court the same, in substance, as was condemned in the case of Scott v. Pettigrew,72 Tex. 331. We are now requested to certify the question involved, because it is insisted that our conclusion is in conflict with the opinion of the Supreme Court of Texas rendered in the case of Ayres v. Harris, 77 Tex. 108, and with the decision of the Court of Civil Appeals for the First District rendered in the case of Branch v. Simmons, 48 Southwestern Reporter, 40.
We retain the conclusion originally expressed that the case of Scott v. Pettigrew was not overruled by the case of Ayres v. Harris on the point involved, and, while it would seem that the decision in Scott v. Pettigrew and the conclusion reached by us based upon that opinion is in conflict with the decision of the Court of Civil Appeals mentioned, we nevertheless are of the opinion that the conflict, if any, will not authorize the certificate requested under the Act of May 9, 1899, regulating the subject. This act provides: "That in any cause that is now pending or may hereafter be pending in any of the courts of civil appeals of the several supreme judicial districts of the State of Texas, any one of said courts may arrive at an opinion in the decision of any of said causes that may be in conflict with the opinion heretofore rendered, or hereafter rendered, by some other Court of Civil Appeals in this State on any question of law, and said Court of Civil Appeals refuses to concur with the opinion so rendered by said other Court of Civil Appeals, it shall be the duty of said court failing to concur with the opinion in conflict with the opinion so arrived at by said court, through its clerk, to transmit the question of law, duly certified to, involved in the cause wherein said conflict of opinion has arisen, together with the record or transcript in said cause, to the Supreme Court of the State of Texas, for adjudication by said Supreme Court."
We can not think it was intended by the Legislature to require of us the certification of a question already determined by the Supreme Court. In our judgment the charge discussed in the original opinion herein was substantially the same charge expressly held erroneous in the case of Scott v. Pettigrew, and inasmuch as, in our judgment, this case has not been overruled by the Supreme Court, we conclude that we are not authorized by the act of the Legislature quoted to certify the question because of the asserted fact that our conclusion is in conflict with the decision of the Court of Civil Appeals for the First District. For the same reason we do not feel warranted in certifying the question of our own motion under article 1043, Revised Statutes.
The motion to certify is therefore overruled.
Overruled.
Writ of error refused. *Page 188