Appendix — City of El Paso v. Simmons

Supreme Court brief1965

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Text

Oftice-Supreme Court, us. |

1 FILED

SEP 21 1964

JOHN F, DAVIS, CLERK

"SUPREME. COURT OF THE UNITED STATES

October Term 1964

OITY OF EL PASO, .

i ‘ Y

versus ‘

GREENBERRY SIMMONS, a

-—

ON APPEAL FROM THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT.

APPENDIX K FOR APPELLEE SIMMONS.

HAROLD Ss. LONG,

El Paso Natjonal Bank Building,

El! Paso 1, Texas,

GREENBERRY SIMMONS,

Kentucky Home Life Building,

Louisville, Kentucky 40202,

Counsel for Appellee.

September 18, 1964.

WESTERFIELD.BONTE CO., INCORPORATED, LOUISVILLE, Ky.

IN THE

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

EL PASO, DIVISION

- |

Civil No. 2334

GREENBERRY SIMMONS, - - - - Plaintiff,

versas | :

CITY OF EL PASO, - - - Defendant.

PLAINTIFF'S REQUEST FOR ADMISSION

UNDER RULE 36.

HAROLD S. LONG,

El Paso National Bank Bidg., |

El Paso 1, Texas,

GREENBERRY SIMMONS,

Kentucky Home J.ife Bidg..

. Louisville Kentucky, 49202

Attorneys for Plaintiff.

March 31, 1964. ;

= 3

—

+ WESTERFIELO-BONTE CO., INCORPORATED, LOUISVILLE, KY.

INDEX.

___

PAGE

"Plaintiff ’s Request for Admission Under Rule 36, Fed-

eral Rules of Civil Procedure............ aver 1-46

I, Request That Documents A-J, Are Genuine..... 140

A. Simmons’ Complianee With CLA. 5 ‘Opinion,

p. o45, ene Contract Again, Exhibit

PE << oko skh a: SA ee .. 1-9

B. Certified Copies Received by General Land

Office of 7 Simmons’ Cheeks Te ndering All

Interest and All Prine ‘ipal on Contracts,

Exhibit Nos. ae eae as 6 9

C. Certified Copy of. Sekowlegemny eh

Jerry Sadler, General Land Commissdoner

Exhibit No. 35.0.0... ES: PAI Oe pee ..10-12

D. Signed Letter of Acknowledgement — by

Jerry Sadler, Land Commissioner. Exhibit

ROS fete ai Os 12-14

E. ‘¢ merited Copy of City's P urported Patent,

N 2 Nelhe Dp. Mundy Survey 240, Stating

ou ‘te Face That It Was “Unsold Public

Free School Land” When The ‘y Were Sold —

tu Settlers Who Acquired Vested) Rights

Over 4) Years Before, Exhibit No, 36... .. 14-17

PF. (Certitied Copy of City's Purported Patent

Laura BF. Mundy Survey 235, Exhibit No.

. aan ae TEEN Ge pew On oe UES Se ago "18-21

G.- Section of El Paso County Map Known

Locally as “Upper Valley” » Covering Area

Including the 2 Parcels of Land Invelved,

eS. epee oa 22-25

| PAGE

H. Acrial Photo (Mosaic), N 2 Survey 240,

Exhitit Xe. W.....0-. oetrerecrecseceees 26-28

I. Enlargement Inset of Aerial Photo (Mosaic),

N 2 Survey 240, Exhibit No. 39A-....... 32-34

(a) Certifications by U. S. Department of

Agriculture of Simmons’ Exhibit No. °

ss) ed bee ee eee een eer s 39-36

J. Aerial Photo (Mosaic), Survey 235, Exhibit

OE = Pere ee he ee. 1 hed: see

II. That Each of the Following Statements, 1-40, is

ee caceen cere ed ceeerauekesueus teen’ 41—46

NE re ae ad oe Sia wee eV ee "$7

Accrued Action, Printed in the Courts below, since

5a NS babel dont dna d cee cao ue ak eek eek 1-52

Tie City hax made no application or Motion for Stay

in the Lower Canrts under 8S. Ct. Rule 18 (1), or

EP OE FO i iin oc Conca ees eset ebrnweeakewses 49

District Jndge’s Notice of February 7, 1964, setting

Pre-trial date Apr. 2071964, 2:00 pam... oe ee. 4)

District Judge's Notice that “Copies of all papers”

must be tiled ten days before Apro 13, °1964...... 7 49

City of El Paso’s Answer and Objection of Simmons’

Request for Admissions, as filed Apr. 1, 1964... 50-52

CITATIONS. ane

Cases: — PAGE

Simmons v. City of El Paso, 520 F. 2d 541, 548, 544,

a co Cee Te

i Sa nr sp eeverecereweres 1, 14, 44

Constitution:

U.S.C.A. Const. Art. 1, See. 10.............2..14,44, 49

CA... Compt. Anime, 14... cece rcsess »..14, 44, 45

Settlers with contracted ‘rights 1910) becoming

vested rights in 1918 (Printed Reeord, pp.‘ 46,

PE Bo 0.8 5h oo ACO e eC eee CONN aS Cee 14

Statutes:

Artiele 5411, Purchase money refunded, Vol. 15A

Vernon's Ann. Civ. St. Tex., Art. 5411, p- 38),

Act 1883, p. 113..... nan Lpdaen Vau was oe tenes 46

Article 5507, Three vear ‘ posse xxion, Vol. 16 Ver-

non’s Ann. Civ. St. Tex.. Art. 907, p. 330, Acts

OR, we TER. . eee oe: Sewn c wed cas Nena eeeeens 45

Article 5509, Five vear'’s possession, Vol. 16 Ver-

‘non’s Ann. Civ. St. Tex., Art. 5509, p. 363, Acts

a Perr ere Tree ee ae 44-45

Article 5515, “Adverse Possession”, Vol. 16 Ver-

non’s Ann. Civ. St. Tex., Art. 5015, p. 5050..,.. 0 45

‘Texas Acts, Senate Bill No. 295, Ch. 278, 54th Leg.,

Reg. Session, 1255, not in anyve of Vernon’s Civil

Statutes. Set out verbatim as Appendix No. 4,

Printed Brief for Simmons, pp. 61-64........ 5. 44:

Miscellaneous:

Cortitications of U.S. Department. of ee,

Acrial Photographs ....... cee LH, 30-56

Fed. Rules Civ. Proe. rule 36, 28 V. See. bao : ie ]

IN THE 7

UNITED STATES DISTRICT COURT |

FOR THE WESTERN DISTRICT OF TEXAS

EL PASO, DIVISION —

Civil No. 2334

' GREENBERRY SIMMONS, %° =) + Plaintiff,

City or Ei Paso. °- - - = - ~~ Defendant.

PLAINTIFF'S REQUEST FOR ADMISSION

UNDER RULE 36, F. R. Civ. P.

Plaintiff. Greenberry Simmons, requests Defend-

-ant. City of El Paso, within ten days after service of

this Request. to make the following admission for the

purpose of this action on.. and subject to all pertinent

objections to admissibility which may be interposed at

the trial:

I. THAT EACH OF THE FOLLOWING DOCUMENTS,

EXHIBITED WITH THIS REQUEST, IS GENUINE:

(A) Certified Copy of the Records of the Texas General

Land Office, Made by the General Land Commissioner,

of a Letter Dated October 26, 1963, From Greenberry

Simmons, Plaintiff, Tendering Again All Interest and

All Principal Due on These Contracts. It Is Stamped

“Received October 30, 1963, General Land Office.”

Simmons’ Compliance with the Court of Appeals Opin-

ion at p. 545.

“The tender made by the Appellant, assuming it

has been or will be kept good, reiistated the contract.”

Simmons v. City of El Paso, 320 F,.2d 541, o40.

PLAINTIFF'S EXHIBIT No. 34:

° _GREENBERRY SIMMONS

Attorney at Law

Kentucky Home Life Building

Louisville 2, Kentucky

, e October 26, 1963

Mr. Jerry Sadler, Commissioner.

General Land Office for the State of Texas e

Austin 14, Texas

. Dear Mr. Sadler:

Re: N 2 Survey 240, .N. D. Mundy, El Paso County,

File No. 147016 and other file numbers.

Survey 235, Laura BE. Mundy, El Paso County,

File No. 112121 and other. file numbers.

In order te comply with the Court's opinion aud the

. Land Purthase Contracts of 1910 involved and the latter

is already filed in the Land Offiee, enclosed are the fol

lowing pertaining to the above specified parcels of land:

1. Certifled Copy of the Judgment in Greenberry Sim-

mons v.'City of KI Pas6 entered September 28, 1963 by

the U.S. Court of Appeals for the Fifth Circuit.

» Letter dated Sept. 28, 1963 from the Clerk of that

court pertaining to this ¢ ‘ertifiedsJ udgment.

3. Copy of the opinion of the Court is reported i in 320

K. 2d o4l,

$. Certified Copies of Deeds recorded in the County

Cterk’s oflice of El Paso County, Texas: ie

A. DD. HU. Heineman, heir of D. G. Heineman, Geanior

to Greefiberry Simmons, grautee. Recorded 7 14°52.

B. Affidavit of Heirship of PD. H. Heineman, Recorded

/14, d2.

C. Tella H. Heineman, grantor to Greenberry Sim-

mons grantee, Recorded 7 14 or.

Ped

—

\ 3

D. Affidavit of Heirship of: Tella a. esicanierneite Re-

corded 7/ 14.52. a

5. Two applications ‘of Greenberry Simmons to rein-

state the forfeited lands and two duplicated checks {not

to be. cashed) for all back interest, as was tendered in 1952.

Please file all the ‘above instruments and charge the

filing fees to my Account No, 742.

6. Current cheeks for all principal and all interest due-

on N.2 Survey 240 N. D. Mundy, El Paso County as fol-

lows: fe :

A. All Principal... 1... 06. ee eee eee “RAO

B.* All back interest to July 23, 162.. 450.11

(All back interest frony July 23, 19902

7 Current Cheeks for all principal and all interest duce

on Survey 205 Laura EB. Mundy as follows:

A. All Peiveinal . .. - cece eee cenee S458.00

B. All Interest to Juty 2 . d...... Bae

‘All Interest from fuly wR, a2 to

Ot 6 «a saenouernes Figg Be bo ES 14s.

We believe that the above cheeks pay all amounts due

in full under the Land Purchasing: Contracts of 1910 and

the court's opinion. -Llowe “ver we are tendering a further

check to pay any other stm which you believe are due

mider the contracts and court's opinion and the balance

left over to be added te my charge account #742, i the:

Land Office. ‘This tendle red check is for one thousand dol-

lars. aN

The total of all se ven check~ tende red ix twenty nine

hundred thirty two doliars and sixty five cents. This brent

be much more than the total amount due.

It may be surprising to realize, the ‘act that my - prede-

cessors in tithe and T bave paid the State, over three time-

the $1.40 contravted purchase price for these lands. In

» £

Enex. 17

- 4

addition Settlers Gleny and, Kilpatrick lived 5 years on

these homesite lands to aequire the vested rights in these

3 year-Residential Oce ‘upational Certificates. These were

recorded in 1913 in the Land Office and the County Clerk’s

Office, ax our Muniments of Title. Acts May 16, 1907 pp.

4115-496.

| received « letter from the Acting Commissioner of

the Land Office on September 6, 1952 with reference to the

D. G. Heinenian properties, vaying “after patent is is-

sued, all title inures to the benefit of the legal owners

* * *% Ty this position still maintained by the Land

Office!

Lf you have othor aeutiots I will be glad to hear

from you or if you think best call me collect, Louisville,

Ky., Area ts ode No. 502, Tel. 451-4814 or 583-8905.,

Sincerely yours,

Reply to this address: °

(s) Greenberry Simmons,

1484 Cherokee Road, °

Louisville, Kentucky.

Page one has the following notations :

CK 438,00 16103 "4 ;

CK $30.11 16104

CK 171.62 16105.

CK 492.98 16106 : a

GK 251.02 16107

CK Lso2 1610s

CK 1,000.00 16100-

“RECEIVED

OCT 30 1963 ;

GENERAL LAND OFFICE

» Page cvo has the following notations’

Nos. 18103, 16104, 16105, 16106, 16107, 16108, 16109,

GENERAL LAND OFFICE, AUSTIN, TEXAS. :

November 21, 1963

I, JERRY SADLER, Commissioner of the General

Land Office of the State of Texas, do hereby certify that

on the reverse hereof is a true and correct copy of the orig:

ivel of this instrament now on file in this offge together

with all endorsements theregn.

IN TESTIMONY W HEREOF, I, hereunto vet my hand

and aflix the-seal of said office the, ay and date first above

written.’

Commissioner of the

: General Land Office

Jerry Sadler

(Seal)

(B) Seven Checks Payable to the General Land Office,

Dated October 28, 1963, Signed by Greenberry Sim-

mons, Received Oct. 30, 1963 and Stamped With the

General Land Office Register Nos. 16103-16109, Total- .

ing $2,932.65 for All Interest and All Principal Due to

Obtain Legal Title to go: With the Already Obtained

Equitable Title, so as to Have Full Title to the Two

Involved Parcels of Lands, to Comply With the Opin-

ion of the Court. The Seven Checks Are Marked as ~

Plaintiff's Exhibits 34A-34G.

PLAINTIFF'S EXHIBIT No. 34A.

21-10

830

16104 ;

No.

; 10-28 1963

Pay to the order of | General Land Office $430.11

Four hundred thirty and 11 1000-— © : —~Dollars

For” All back interest to Indy 25, To

N 2 Survey 240 N.D. Mundy, El Paso

County Texas

To Comply with Court opinion te

reinstate Land pirchase .

Contract 1910.

(s) Greenberry Simmons

" Special Account

CITIZENS FIDELITY

BANK & TRUST CO

LOWISVILLE, KENTUCKY

83ND. - OTE):

PLAINTIFF'S EXHIBIT No. 34B.

21-10

. 830°

16105 .

: No.

. » 10-28 1963 :

Pay to-the order of General Laid ae $171.62

One hundred seventy ene and 62 100°——-— ~~ Dollars

For All back interest from July 23, 1992

to date Nov. 1, 1968 N 2 Survey 240

N.D. Mundy, El Paso Texas

To Comply with Court's opinion

Contract 1910

(s) Greenberry Simmons

; Special Account

CITIZENS FIDELITY g

BANK & TRUST CO.

LOUISVILLE, KENTUCKY

S30 - 001.0:

a ee

PLAINTIFF'S EXHIBIT No. 34C.

> 16103

, 4 No.

T1028 1963

Pav to the order of | General Loiirel Office s455.000 100

Four hundred thirty cight. and GO) 100 Dollars

For All principal due on Land

Purchasing Gentract 1410

Survey 235, Lanra BK. Mundy

El Paso, County, Texas

(2) Greenberry Simmion®

| . Special Aceount

CITIZENS FIDELITY .

BANK « TRUST ©O. . A

LOUISVILLE, KENTUCKY “

US30 - - OOL LO:

‘PLAINTIFF'S EXHIBIT No. 34D.

16109

No.

c 10-28 1963

Pay to the ‘order of | General taen Office $1000.00 100

One thousand 00/100-——_——_-__—_-_—- Dollars

_For | Any balance if any due in principal,

“interest or any other costs, on Cortracts of 1910

N 2 Survey 240 N. D. Mundy

Survey 235 Laura FB. Mundy doth El Paso

County Texas

; (s) Greenberry Simmons

‘ Special Account

CITIZENS FIDELITY

BANK & TRUST CO.

LOUISVILLE, KENTUCKY

-OS30 - - - 00'.0:

PLAINTIFF'S EXHIBIT No. 34E.

16107

a No.

| = 10-28 1963

Pay to the order of General Land, Office “$251.02. 100

Two hundred fifty one and’ 02 100 oe | a

For All interest to Maly 23, 1952

Survey 235 Laura BE. Mundy

El Paso Co., Texas. ¢ To 4 baat with

Court opinion to

reinstate Layd Purcha- ing Contraet 1910

(=) Greenberry Simmons

‘ % Special Account

CITIZENS FIDELITY

BANK & TRUST.-CO. :

LOUISVILLE, KENTUCKY

OS30 ~~ - 00120:

9 e

a PLAINTIFF'S EXHIBIT No. 34F. ©

16108

’ No.

. 10-28 1963 .

Pay to the order of General Land Office $148.92 /100

One hundred forty cight and 92° 100 Dollars

For ll back interest from July 28, 102

to date, Nov. 1, 1963 Survey 230 Laura kK. Mandy,

El Paso County, Texas. To Comply with

Court’s opinion, Contract

1910.

(s) Greenberry Simmons

= Special Account -

STIZENS FIDELITY

BANK & TRUST CO.

LOUISVILLE, KENTUCKY

830 - - - 001202.

PLAINTIFF'S EXHIBIT No. 34G.

21-10

830

16106

; No. |

; 10.28 +963

Pay to the order of General Land Office -. #4O2_S

Four hundred ninety two and us 100 . Dollars

For All principal due ow Land Purchasing

Contract 1910 for N 2 Surey 240.0,

XD. Mundy, El Paso County Texas ‘

; (s) Greenberry Simmons |

Special Account

CITIZENS FIDELITY .

BANK & TRUST CU.

LOUISVILLE, KENTUCKY

Y0830 --- 001 Gr -

From Jerry Sadler, Commissioner of the General Land

Office, to Greenberry Simmons; in Reply to the Above

Letter Sent Him, Dated October 26, 1963, in Which

He Returned All 17 Enclosures, Including the Seven

Checks Which Had Been Tendered to Comply With

the Opinion of the Court. Plaintiff’s Exhibit No. 35.

PLAINTIFF'S EXHIBIT No. 35.

November 13, 1962

Mr. Greenberry Simmons

Attorney at Law

1484 Cherokee Road

Louisville, Kentucky, s

Re: Files 147016 & 1f2121

KE] Paso County Texas

Dear Mr. Simmons:

This will acknowledge receipt of your letter dated Oc-

tober 26, 196°, with enclosures pertaming to the above ret-

erenced matter,

We have examined your request as contained in your

correspondence and find that such requested action is not.

apprepriate at this thane. We are therefore returning to

vou the following: |

1. Certified Copy of the Judgment in Creenberry Sim-

mons Vv. City of El Paso entered September 28, 1963 by the

c. &. Court of Appeals for the Fifth Cireuit.

2. Letter dated September 28, 1963 from the Clerk of

that court pertaining to this Certified Judgment.

Copy of the opinion of the Court is reported in 320-

2d 4. |

4.) Certified Copies of Deeds recorded in the County _

Clerk's offiee of El Paseo County, Texas.

A. D. H> Heineman, heir of D. G. Heineman, grantor,

. to Greenberry Simmons,- grantee. Recorded

: 1d 52.. P

B: Affidavit of _ of D. H. Heineman, Re-

corded 7/1452

(. Tella H. eae grantor to Greenberry Sim-. .

mons grantee, vaste sgacha (14°52.

D. Affidavit of Heirship < of Tella H. Heineman. Re-

corded 7 14. 52.

2. Two appligations of Greenberry Simmons to rein-

state forfeited Jands and two duplicated checks (marked

not ta be cashed). & ia.

Hh. Seven (7) original clack returned flirect herewith

as follows:

General Land Office Regis ter No. 16103 $-438.00

reneral Land Offiee Register No. 16104 450. 11°

t General Land Office Register No. 16105 17 t.62

General Land Office Register No. 16.06 492.98

é General Land Offiee Register No. 16107 251.02

General Land Office Reeister No. 16108 14s.tr2

General Land Office Register Noe 16109 — 1.000,00

Yours very trury,

Jerry Sadler, Commissioner. 4

JS cths

Enclosures’

Tete : ;

REGISTERED MAIL,

RETURN RECEIPT

REQUESTED

GENERAL LAND OFFICE, AUSTIN, TEXAS,

November 21, 1963.

I, JERRY S SADLER, Commissioner of the General Land

Office of the State of Texas, do hereby certify that on the

reverse Jiereof is a true and correct copy of the original

of this mstrument now on file in this office together with all’

endorsements thereon.

“IN TESTIMONY WHEREOF, J, hereunto set my hand

and affix the seal of said office the day and date first above

ahataian Fé Commissioner. of the

Jerry Sadler General Land Office

(Seal) ,

(D) Signed Identical Copy of the Above Certified Copy

of the Letter From Jerry Sadler, General Land Com-

missioner, Acknowledging the ~* of Seven Checks

for All Interest and All Principal, as Well as the Rest

of the 17 Enclosures and Returning Them. Plaintiff's

Exhibit No. 35A..

PLAINTIFF'S EXHIBIT No. 35A.

Noveniber 13, 19638

Mr. Greenberry Simmons

Attorney at Law

1484 Cherokee Road

Louisville, Kentucky, 40204 |

Re; Files 147016 & 112121

Ki] Pasa County, Texas

Dear Mr. Simmons: . ‘

This will acknowledge receipt of vour letter dated Oc-

tober 26, 1962, with enelosires pertaining to the above ref-

erenced matter.

- We have examined vour request as contained yn your

correspondence and find that such requested action is not

appropriate at this time. We are therefore returning to

you thie followigg:

1. Certified opy of the Judgment in Greenberry Sien-

mons v. City of El Paso. entered September 28, 1963 by the

ULS. Court of Appeals for tf Fifth Circuit.

2. Letter. dated September 28, 1963 from the Clerk of

that court pertaining to this Certified Judgment.

: 3. Copy of the opinion of the Court is reported in 320

F. 2d 541.

4. Certified Copies of Deeds reeorded in the County

Clerk's office of El. Paso County, Texas.

A. D. Heinenan, heir of D. @.

to Gireenberry — Simmons,.

7/14 52.

B. ‘Affidavit of ‘Heirship of D.

eorded 7 14 52. —

.. Tella H. Heineniim grantor

mons grantee. Recorded ¢ 14 92.

D. Affidavit of Heirship of Tella LH. Heineman.

Pia

corded 7 145

grantee.

Heineman, grantor

Reeorded

M1. Heineman. |

to Greenberry

Re-

Kk? s

Sim-

Re-

. Two applieations of Gr. anberry Simmons to rein-

' state . forfeited lands and two duplic rated checks) (marked

not to he cashed).

6. Seven (7) original checks returned direct herewith

— as follows:

General Land Ofte e Register No.

General Land Office Rezister No.

General Land Office Register’ No.

General Land Office Register No.

70 he ral Land Office Roeinier No.

16103

16104

16106

16107

16108

16109

Yours very truly,

* (Signed) Jerry Sadler

Jerry Sadler,

JS:ths

Enclosures

438.00

430.11

171.62

492.98

291.02

148.92

1,000.00 —

Commissioner.

16109 “ £

REGISTERED MAIL: oe

RETURN RECEIPT

REQUESTED ©

(E) Certified Copy of the City’s Purported Patent. and

Grant (Printed Record, p. 30) Dated January 26, 1956,

Granting to the City of El Paso, Its Own Created

Municipality, the N/2 Survey 240, Nellie D. Mundy,

Which Was Filed in E] Paso County Clerk’s Office on

January’ 30, 1956, Patent No. 75412 Stating Upon Its

Face that the State Reserved the _— to Lease These

Lands for Oil and Gas.

re + e

in the same manner as * * * pro-

vided for the leasing of Unsold Public Free Schoo!

a * > =

—— — \ . .

This was not ‘‘Unsold Public Free School Lands’”’

but had been sold over 45 vears before to settlers with

contracted vested rights, and was still sold at that time,

according to the Court of Appeals for the Fifth Cir-

cuit in its Opinion, in this suit. —~ -

The Patent further states that it rulieneiaies to the —

City and not to Simmons, as it had contracted to do,

se * * all the right and. title in and to said

iand heretofore held and possessed by said State

* 7. v 9

This sale to the City. by the Legislative Act of

‘1959, which is the basis of this Patent.-has been declared ~

illegal and void and in viclation of the rights given to

Plaintiff under the Constitution“of the United States.

y : = aie

Contract Clause and Due Process, Simmons v. City of

El Paso, 320 F. 2d 541, 543. 544. Plaintiff’s Exhibit

No. 36. _ ;

, 13°

PLAINTIFF'S EXHIBIT No. 36.

Vol. 25-B 7 75412 ? No. 492

IN THE NAME OF THE STATE OF TEXAS

To All to Whom These: Presents Shall € ome, Know Ye:

I, Allan Shivers, Governor. of the State aforesaid, hy

virtue of the power vested in me by law and in accordance

_ with the Jaws of said State in such case made and provided,

do by these presents Grant to The City of El Paso, A Mnu-

nicipal Corporation, its suecéssors. and assigns forever,

Three Hundred Twenty Bight & 65.100 (328.65) acres of

and situated and deseribed as follows in El Paso 4 ‘ounty,

known as North 's of Survey. 240, S.F.7219, Nellie D.

Muady, about 11 miles North 20° West from El Paso, Texas.

Bought and fully paid for ou the application of The City

of El Paso, by Tom K. Rog -rs, Mayor, filed in the Gene ral

Land Office November 14, 1955 under the laws regulating

the sale of Publie Free ‘:chool land, and provisions of

S. B. 295, Aets 54th Legisiature, 1995.

Begiuning at the Southeast corer of Section 259,

Nellie D. Mundy, in the West line of Seetion 243, Nelle D.

Mundy, for the Northeast cornersof this survey and North-

east corner of Section 240;

Thenee South.7 jos. Varin with the West lines of See.

tion 243 and Section 242. Netlic D. Munsly. to the Northeast

‘corner of the South be oof Scetion 240: . :

Thence West 2514 varas to the Northwest corner of the

South 1 of Seetion 240; .

Thenee North 6077 East 738 2 varas with the West dine

of Section 240 to the Vorthwest corner of Section 240:

Thenee East 2512... Saras to thie place of beginning.

This grant shal! ios subject te any right of wav wease

ments, surface lease, or any oil, gas, mineral Jeases or

permits heretofore given by the State on said lands. Ad

mines and minerals and ‘mineral rights, ineluding oil and

gas in and under said lands, together with the right: to

enter thereon for the purpose of exploration and develop-

ment, are hereby reserved to the State of Texas, and said

larfds shall be subject to lease by the State for mineral

exploration and development in the same manner as is now,

or may hereafter be provided for the leasing of unseld

Publie Free Sehool Lands; provided, however, that the

School Land Board or other legally constituted authority

offering said lands for lease shall place in said leases such

rules and regulations as may be deemed proper by said:

Board or agency for the prevention of pollution and con-

tumiration of the fresh waters in, on, and under said lands.

Hereb¥ryelinquishing to It the said The City of El Paso

and itsuccéssors or assigus forever all the right and title

in and to said land heretofore heid and possegsed by the

said State, and I do. hereby issue this Letter Patent for .

the same.

(F'-152973)

In Testimony Whereof, I have caused the Seal of the

State to be affixed, as well.as the Seal of the General Land

Office. Done at the City of Anstin.on the Twenty Sixth day

of January, in the vear of Our Lord One Thousand Nine

Hundred and Fifty Six.

; : (Seal)

(Signed) Allan Shivers,

Governor.

; (Seal) |

(Signed) J. Marl Ritdder,

Commissioner of. the General Land Offiee.

Foe FILED FOR RECORD

IN MY OFFICE

1956 Jan 30 PM 12:16

Raymond L. Telles, Jr.

County Clerk, El: Paso County, Texas

f (Signed) W. T. Duncan

* J

The. State of Texas ) —

County of. KE] Paso

I,J. W. Fields, ¢ ‘offiy Terk in and for El Paso Couke,

State of Texas, do hereby cer tify ihat the foregoing is a ~

true and correct copy of the: Patent From:. State of

Texas To: City of El Paso. Dated the 26th day of Jan.,

1956, as the same appears of record in the Deed Records of

Said County in Volume 1272 Page 554 thereof.

Given under my hand and seat of office at office in

El vient Texas, this the : 26 day of Nov. A. D., 1963.

(Seal)

J. W. Fields, County Clerk,

Kl Paso County, Texas. _

By: (Signed) Antonio Chavez,

Deputy.

The State of Texas ts '

County of El Paso |. ;

I, J. W. Fields, County Clerk of El —_ County, Texas,

and Antonio. Chavez, his deputy. further certify that we

are the officers who have the. custody of the filed original

‘official records from which these true Certified Copies were

made ‘and- also we have the legal custody of these filed

original official records.

In Testimony Whereot, we’h shave herete set our hands

and affix the seal of said offic®. this the 26° day of Nov.

A. D. 1963.

(Seal) ©

» (Signed) J. W. Fields,

J}. OW: Fields, County Clerk of

El Paso County, Texas.

. (Signed) Antonio Chavez,

Antonio Chavez, Deputy.

° sf 13

(F) Certified Copy of the City’ s Purported Patent and

Mey (Printed Recofd, p. 30) and Dated the Same as,

| ving the Same Provisions as, the Patent and

ro t in (HE) Above, Except It Convey Survey 235

Laura E. Mundy and Has County Clerk’s Patent No.

75413. Plaintiff’s Exhibit No. 37.

PLAINTIFF'S EXHIBIT No. 37.

Vol. 25-B _ + 73413 Ne. 491.

IN THE NAME OF THE STATE OF TEXAS

To All to Whom These Presents Shall Come, Know Ye:

I, Allan Shivers, Goyernor of the State aforesaid, by

virtue of the power vested in me by law and in accordance

with the laws of said State in such case made and provided,

do by these presents Grant to The City of El Paso, A Mu-

nicipal -Corpori.tion, its syecessors and assigns forever,

Two Hundred Ninety Tio ( 292.) acres of land situated and

deseribed.as follows in EF] Paso Connty, known as Survey

235, S.F. 7230, Laura E Mundy, ‘about 13'% miles .North

413°55’ West from El Paso, Texas. Bought and fully paid

for on tke application of The City of El Paso, by Tom FE.

‘Rogers, Mayor, filed in the Genera] Land Office, Novem.

ber 14, 1955 under the laws regulating the sale of Public

Free School land, and provisions of S.B. 295, Acts 54th

Legislature, 1955. ‘

‘Beginning at stake and rock mound#set on the South

line of Laura BE. Mundy Survey No. 232 on bench at Fast

end of canyon from which a black gulch on West slope of

Mt. Anthony bears East, for the Northwest corner of this

survey, 1856 varas Soufh-and 3860 varas East by actuals

survey y ater, an iron pipe and rock mound found at North-

east corner of Survey 174, which iatter corner is 1717 varas

East of R. R. me =

Thence from said beginning point, East, at 377 varas .

pass rock mound set’for Southeast corner said Survey 232,

at 820.6 varas set rdck mound on South side arroyo in small

canyon, at 865.7 varas to stake and mound at Northeast

corner, this survey and Northwest corner Survey No. 5 of

seid T & P Block 82;

Thence South 0°07’ East with West line of said Sur-.

vey 9, 1900 varas‘ to Southeast corner this survey, North-

east corner Survey 236 and Southwest corner said’ Survey

No. 5;: | ; |

Thence West 869.7 varas to stake and mound at original

Northwest corner said Survey 236 and Southwest corner —

‘this surv ey;

Thence North 1900 varas to place of beginning.

This Grant shall be subject to any right of way ease-

ments, surface leases, or any oil, gas, mineral leases cr

permits heretofore given by the State on said lands. All

mines and minerals and mineral rights, including oil and .

gas in and under said lands, together with the right to

enter thereon for the purpose of exploration and develop-

ment, are hereby reserved to the State of Texas, and said

lands shall be subject to lease by the State for mineral

exploration and development in the same manner as is now,

or may hereafter he provided for the leasing of unsold

Public Free School Lands; provided, however, that the

School Land Board or other legally constituted authority

offering’ said lands for lease shall place in said leases such

rules and regulations as may be deemed ‘proper by said

Board or agency for the prevention of pollution and con-

tamination of the fresh waters, in on, and under said lands.

Hereby relinquishing to It the said The City of El Paso:

and its successors or assigns forever all the right and title

in and to said land heretofore held and possessed by the

said State, and I do hereby issue this Letter Patent for

the same.

ace ee ok

nee

IE AES tht REY

pee he

tees

20 /%

( F-152972)

In Testimony Whereof, I have caused the Seal of the

State to be affixed, as well as the Seal of the General Land

(Qffice. .Done at the City of Austin on the Twenty Sixth

day of ‘January in the year of Our Lord One Thousand

Nine Hundred and wlaiad Six.

(Seal)

(Signed) Allan Shivers,

Governor:

(Seal)

(Signed) J. Earl Rudder,

Commissioner of the General Land Office. as

FILED FOR RECORD

IN MY OFFICE——

1956 Jan 30 PM 12:17 tes.

Raymond L. Telles, Jr.

1 ; | County Clerk, El Paso County, Texas

| | (Signed) W. T. Duncan.

The State of Texas

County of El Paso

I, J. W. Fields, County Clerk in and for-El Paso County,

State of Texas, do hereby certify that the foregoing is a

true and correct copy of the: Patent From: State of

(Texas — To: City of El Paso. Dated the 26th day of Jan.,

1956, as the same appears of record in-the Deed Records of ,

Said County in Volume 1272 Page 555 thereof.

Given under my hand. and seal of office at office’ in

El Paso, Texas; this the 26 day ef Nov.,A.D., 1963.

. J. W. Fields, County Clekk,

EI Paso County, Texas.

By: (Signed) Antonio CHavez,

(Seal) *— : ) Deputy.

The State of Texas

County of E] Paso

i . Fields, County Clerk of El} Paso County, Texas,

and Antonio Chavez, his deputy, further certify that we

are the officers who have the custody of the filed original

official records from which these true Certified Copies were

made and also we have the legal custody of these filed

original official records.

In Testimony Whereof, we have hereto set our hands

and affix the seal of said office, this the 26 day of Nov.

A. D. 1963.

(Signed) J. W. Fields,

J. W. Fields, County Clerk of

E] Paso County, Texas.

(Signed) Antonio Chavéz,

| _ Antonio Chavez, Deputy.

(Seal) ee %

(G) “UPPER VALLEY” SECTION OF COUNTY MAP.

A section ‘of the map of El Paso County, made.

by the Engineering Department of the County and

covering the area known locally as the Upper Valley,

including the two parcels of land herein involved. The

two inset areas are approximately the. aerial photos

later shown as Simmons’ Exhibits Nos. 39, 39A, 40.

Some of the other sections included in the 14,000 acres

obtained by the Defendant at the same date, and one

mile from Survey N/2 240 and adjoining Survey 235,

are marked with a large “‘X’’ for identification.

Plaintiff's Exhibit No. 38 on Opposite Page.

Pe-

~e 1 a ae

| > fs et | : Se

RPRECINGS 4”

. ‘ : é

"UPPER VALLEY" (f Jn

SECTION OF MAP OF

) Ro Bs 1 eee _SIMMONS,ON SURVEYS N/2 240,235.

C = oS eran = CLOSE BY SECTIONS,CITY OBTAINED

€.P.C.E. = BLPASO COUNTY ENGINSER as PART OF I4000 ACRES,QUTSIDE OF

PEVISED + JUNE,1961. CITY LIMITS. . 3 ,

TWO INSETS = AERIAL PHOTOS(MOSAICS)OF EACH PARCEL OF LAND AND SUR-

-ROUNDING ARBAS,SIMMONS EXHIBITS NOS?39,40. |

WW),

aoe Ss ~.

MMISSIONERS,

“-

(H) AERIAL PHOTO, N/2 SURVEY 240.

"A mosaic made of two sectional photographs taken

from tk air, flight date 3-26-60, and being certified

copies of the Records of U. S. Department of Agri-

culture Stablilization and Conservation Service. Area

and surrounding landmarks near the Canutillo con-

necting road everpass over U.. S. Highway Inter-

state 10, including the inset N/2 Nellie D. Mundy Sur- |

vey 240, Ei Paso County, Texas, one of the parcels

of land herein involved and marked:

Simmons’ Exhibit No. 39 on Opposite Page.

~~ pe

EO ee YOR atit .ebe- ten See

A tA ites

Certification for Simmons’ Exhibit No. 39.

; ' No, 418

UNITED STATES OF AMERICA

‘Department of Agriculture

Washington |

1, Orville L. Freeman, Secretary of Agriculture of the

United States, pursuant. to Title 28, United States Code,

. Section 1733, do hereby certify that the annexed copy, or

each of the specified number of annexed copies, is a true,

correct and compared copy. of a document in my official

custody as hereinafter described: An enlargement from:

aerial negative DY J-1AA:168, bearing the date of March 26,

1960, which was secured while photographing El Paso

County, Texas, and which is ou file in the Western Labora-

tory, Aerial Photography Division, Agricultural Stabiliza-

tion and Conservation Service, USDA, Salt Lake City,

Utah.

In testimony whereof I have hereunto caused the seal

of the Department of Agricultuge to be affixed and my

name subscribed in the District of Columbia, this 19th day

of February, 1964..

(Signed) Orville L. Freeman,

Secretary,

By (Signed) W. H. Tomsheck, |

Chief, Western Laboratory; ASCS, USDA.

(Signed purauant to the authority of 27 F. RB. 8958),

(Seal)

P&O 173 (9-62)

No. 420

UNITED STATES OF AMERICA

Department of Agriculture

Washington

1, Orville L. Freeman, Secretary of Agriculture of the

United States, pursuant to Tithe 28, United States, Code,

Section 1733 3, do hereby certify that the annexed copy, or

each of the specified number of annexed copies, is a true,

correct and e¢ompared copy of a document in my official

custody as hereinafter deseribed: An enlargement from

acrial negative DYO-1A A :202, bearing the date of March 26,

1960,:which was secured while photographing Fl Paso

County, Texas, and which is on file in the Western Labora-

tory, Aerial Photography Division, Agricultural Stabiliza-

tion and Conservation Service, USDA, Salt Lake City?

Utah.

In testimony whereof I have hereunto caused the ‘seal

of the Department of Agriculture to be affixed and my

name subscribed in the District of Columbia, this 19th day

of February, 1964. ?

: (Signed) Orville L. Freeman,

Secretary,

By (Signed) W. WH. Tomsheck,

Chief, Western Laboratory, ASCS, USDA.

(Signed pursuant to the authority of 27 ¥. R. 8958) @

(Seal) ,

P&O 173 (9-62)

; a

(I) ENLARGEMENT INSET OF AERIAL PHOTO

(MOSAIC), N/2 SURVEY 240.

Same as Simmons’ Exhibit No. 39, Except —_—

2\% Times and tse dy Less etree Area.

Scale 1” —= 400’

There is nothing visible upon this inset photograph

to show peoneing was taken of this parcel of land, :

except the U.S. Highway Interstate 10, the gravel

permit iat and temporary road to the gravel

workings, none of these were granted for the eutire five

year period, prior to the filing of this Suit, on August

31, 1961.

Simmons’ Exhibit No. 39A on the Opposite Page.

_ ENLARGEMENT INSET

AERIAL P..OTO(MOSAIC),N/2 GURVEY 240,

. : oT 1-8 om “+ Tom a z ar se ?

‘CAMB AS oIM.IONS® EXHIEIT NO.39 N/2 osu:

aes a bt Pan ; vee os oes - i pee

2aXCZFT ZuwLlARGZAD 23 TING s Aine VO ERIN

SURROUNDING AEA,

NOTHING VIoIELE Is stOeh 2

TO sHOn POwreBaolOn EY

HIGHWAY INTER=STLTE

PERMIT w2nKINGo AND

INGS,ALL THREE STARTED

LIMITATION FROM DATE

; hy BI

423

1 ee

AUG. 3I-I9o0l.

: A |

oluMOneo

BATIEI r

“O. 598A.

Certification for Simmons’ Exhibit No. 39A..

No. 416

UNITED STATES OF AMERICA -

Department of Agriculture

- Washington

_I, Orville L. Freeman, Secretary of Agriculture of the

United States, pursuant to Title 28, United States Code,

Section 1733, do hereby certify that the annexed copy, ‘or

each of. the specified number of annexed copies, is a ‘true,

correct and compared copy of a document in my official

custody as hereinafter described:. -An enlargement from

aerial negative DYO-1AA :168, bearing the date of March 26,

1960,. which was secured while photographing El Paso

County, Texas, and which is on file in the Western Labora-

tory, Aerial Photography Division, Agricultural Stabiliza-

tion and Conservation Service, USDA, Salt Lake City,

Utah.

In testimony whereof I have herfunto caused the seal

of the DepArtment of Agriculture {fo be affixed and my

name subgcribed in the District of Columbia, this 19th day

of February, 1964. .

(Signed) Orville L. Freeman,

Secretary,

By (Signed) W.-H. Tomsheck,

Chief, Western Laboratory, ASCS, USDA...

(Signed -pursuant to the authority of 27 F. R. 8958)

(Seal)

P&O 173 (9-62)

. No, 421

Department of Agriculture

Washington -

I, Orville L. Freeman, Secretary of Agriculture of the

United States, pursuant to Title 28, United States Code,

Séction 1733, do hereby certify that the annexed copy, or .

each of the specified number of annexed copies, is a true,

correct and compared copy of a document ‘in my official

custody. as hereinafter described: An enlargement from

acrial negative DYO-1AA:202, bearing the date of March 26,

1960, which was secured while photographing El Paso

County, Texas, and which is on file in‘the Western Labora-

tory, Aerial Photography Division, Agricultural Stabiliza-

tion and Conservation Service, USDA, -Salt Lake City,

Utah.

In testimony whereof I have hereunto caused the seal

of -the Department of Agriculture to. be affixed and my

~ name subscribed in the District of Columbia, this 19th day

of February, 1964. ,

(Signed) Orville L. icin

Seeretary,

By (Signed) W. H. Tomsheck, .

Chief, Western Laboratory, ASCS, USDA. |

(Signed pursuant to the authority of 27 F. R. 8958)

(Seal)

P&O 173 (9-62)

(J) AERIAL PHOTO. SURVEY 235.

A mosaic made of four sectidnal photographs taken

from the air, flight date 8-10-63, part of a photographi¢

map of EF] Paso County. Texas, photographed by Mid-

west Aerial Photographie Service, Inc. Area and sur-

rounding landmarks near the Vinton connecting road .

overpass’ over U. S. Highway Interstate 10, including

the inset Laura FE. Mundy Survey 235, one of the par-

cels of land herein involved and marked: Simmons’

Exhibit No. 40.

‘There is nothing visible upon this inset parcel of

land, Laura FE. Mundy Survey 235, to. show any pos-

session.

Simmons’ Exhibit No. 40 on the Opposite Page.

AEAIAL PHOTO(MOSAIC) WUAVEY 255.

VINTON OVERPAS. AENIAL FHOTO “IAP,

1.#ONS' EXHIEIT NO.40, INCLUDING LAURA

fH &

o4UwDY SURVEY 235.

A SECTION OF THE PHOTOGHAFHIC MAF OF

0 SOUNTY,TEXAS,MADE FY MIDWEST

PHOTOGRAFHIC SERVICE,INC.

DATEs 8-10-63. ..

SCALE I" S I060' ,approxinatel

os aed “29

; : SIM..ONS..

EXHIEIT

: 4 NO. 40

: NN

he SARA els oes

Il. THAT EACH OF THE FOLLOWING

‘STATEMENTS IS TRUE. :

' That the City has built no ‘buildings on 1 these

Pe seaeee parcels of involved lands.

2. That.the City has put up ne fences on 1 these .

lands. _

3. That the City has made no visible improvements

of any kind on these lands. which have remained on

them, for a continuous 5 year period between the dates

of January 26, 1956, the date the City’s purpotted

patents: were issued, and August 31, 1961, the date this

suit was filed. ,

4. That the City has not cultivated these lands.

5. That the City has made no ‘complete survey on

all four sides of cither of these two parcels of land.

6. That when the City had made any partial sur-

vey. if any, they were a]Jl made within the 5 year period.

before the filing cf this suit on August 31, 1961.

7. That the City -has paid no taxes on these lands..

8. That the City has put nothing on these two

particular involved parcels of land with the name of

the City of FE] Paso or the.name of the Publie Service

Board ineluding signs, which have remained on them

for a 5 year period between dates the purported

Patents were issued and the date this suit was filed.

9. That the posted signs prohibiting Trespassing.

which did inelude the names of the City of F] Paso or

the Publie Service Board, upon such signs, were put

on the other portions of the 14.000 acres of land, but

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.