EXHIBIT E FILED IN
4th COURT OF APPEALS
SAN ANTONIO, TEXAS
03/12/2015 4:41:59 PM
KEITH E. HOTTLE
Clerk
STATE OF MISSOURI
COUNTY OF BUCHANNAN
AFFIDAVIT OF KENNEY NEWVILLE
BEFORE ME, the undersigned authority, this day personally appeared KENNEY
NEWVILLE, who being by me first duly sworn upon oath deposed and stated the following:
"My name is KENNEY NEWVILLE. Unless otherwise indicated herein, I have
first-hand knowledge of the facts herein. All of the facts herein are true and correct. I am
the Engineering Consultant of GRACE RIVER RANCH, LLC (GRACE RIVER). I
frequently perform those services at the location of Grace River Ranch. I am familiar
with Grace River Ranch and the surrounding area.
GRACE RIVER is a Texas limited liability company originally formed on
December 28, 2012 as "Rio Gracia, LLC." On January 30, 2013, the registered name of
Rio Gracia, LLC was changed to "GRACE RIVER RANCH, LLC."2
GRACE RIVER is the owner of the 6,779.066 acre Grace River Ranch located in
part or all of the following surveys in La Salle County, Texas:
Figure 1.
SURVEY ABSTRACT NO.
Tyler B. Self A-649
P.T. Irrigation Co. A-753
W.A. Tennison A-678*
Wm. Wallace A-696*
Jno. Reuerman A-634*
G.B. & C.N.G. R.R. Co. A-867
B.S. & F. A-100
I Refer to "Exhibit 2".
2 Refer to "Exhibit 3".
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SURVEY ABSTRACT NO.
C.C.S.D. & R.G.N.G. R.R. Co. A-1733
C.C.S.D. & R.G.N.G, R.R. Co, A-720
*Indicates Abstract is partially included within the Grace River Ranch boundary.
This 6,779.066 acre ranch is more particularly described by metes and bounds in a
Special Warranty Deed, Veda Gwen Goodwin Treat and Kelly Maxwell Goodwin, Co..
Trustees of the Roy and Bonnie Goodwin Family Ranch Trust dated December 17, 2012
to Rio Graoia, LLC dated December 31, 2012 and recorded at Volume 664, Page 227,
Official Public Records, La Salle County, Texas (hereinafter the "Grace River Ranch").3
From my review of the appended records of the Office of the Texas Secretary of
State, it appears that EL CABALLERO RANCH, INC. (EL CABALLERO) is a Texas
corporation formed December 17, 1997.4
I have thoroughly reviewed the Deed Records and Official Public Records of La
Salle County, Texas which are appended to this Motion for Stun/nary Judgment. EL
CABALLERO is the owner of at least 9,220.993 acres comprising the E1 Caballero
Ranch located in part or all of the following surveys in La Salle County, Texas:
Figure 2.
SURVEY ABSTRACT NO,
J. Poitevent A-813
G.B,&C.N.G. R.R. Co. A-730
G.Br&C.N.G. R.R. Co, A-1737
Beaty, Seale & Forwood A-1122
Heirs of Greenlee A-561
A.B. & M. A-13
Adams, Beaty & Moulton A-1403
T.W.N.G. R.R. Co. A-764
3 Refer to "Exhibit 4".
4 Refer to "Exhibit 5".
2
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SURVEY ABSTRACT NO.
T.W.N,G. R.R. Co. A-1736
G.B. & C,N.G. RR, Co, A-731
Frederick Walbold A-702
G.B. & C.N.G. R.R, Co, A-1451
G.B. & C.N.G. R.R. Co. A-795
Adams, Beaty & Moulton A-1735
A, & B. & M. A-12
G.B, & C.N.G. R.R. Co. A-1451
T.R. Wright A-1845
(hereinafter the "El Caballero Ranch").
The El Caballero Ranch is described in a Warranty Deed from Knight Oil Tools,
Inc. to EL CABALLERO dated March 30, 1998 and Bled of record at Volume 400, Page
83, Deed Records, La Salle County, Texas.5
From my review of the records of the Office of the Louisiana Secretary of State,
LAREDO MARINE is a Louisiana limited liability company formed on December 18,
2000.6
LAREDO MARINE is the owner of a 30,074.41 acre tract known as the 7 C's
Ranch located in part or all of the following surveys in La Salle County, Texas.
^
$ Refer to "Exhibit 6".
6 Records of the Office of the Louisiana Secretary of State regarding Laredo Marine, LL,C. [Exhibit 33].
3
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Figure 3.
SURVEY ABSTRACT/SURVEY NO.
W.A. Tennison A-678/Survey No, 106
Wm. Wallace A-696/Survey No, 105
Jno, Reuerman A-634/Survey No, 104
Win. Ferebee A-172/Survey No. 103
Clemente Diaz A-I45; Survey No. 102
G.B. & C.N.G. R.R. Survey No. 1431
Sarah Rogers Survey No 267
San Casimir° A-1208
B.S. &F. Survey No, 2 A-2095
G,13. & C.N,G.R,R. A-2096/Survey No, 422
0.13, & C.N,G,R.R. Survey No. 421
Win Armstrong A-8/Survey No. 101
Daniel Dolan A-146/Survey No 100
P,T, Irrigation Co, A-754/Survey No. 263
Wm, S. Williamson A-695/Survey No. 98
J.S. Thorn A-1088/Survey No, 265
-
H. &G. Ry. Co, Survey No. 1223
(hereinafter the "7 C's Ranch).
The 7 C's Ranch is described in Correction General Warranty Deed With
Assumption of Security Documents, Damon Chouest, Inc. to Laredo Marine Dated April
4
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20, 2011 and filed of record at Volume 572, Page 120, Deed Records, LaSalle County,
Texas (hereafter the "7 C's Ranch").7
The appended records from the Deed Records and Official Public Records of La
Salle County demonstrate that the Grace River Ranch (now owned by GRACE RIVER),
the El Caballero Ranch (now owned by EL CABALLERO), and the 7 C's Ranch (now
owned by LAREDO MARINE) all have a common source of title, same being Patrick H.
Welder, Jr. The parent tract was acquired by Patrick H. Welder, Jr. by deed dated
January 28, 1963 and recorded at Volume 130, Page 116, Deed Records, La Salle
County, Texas on February 19, 1963, I have set out below in tabular form the title
histories of the Grace River Ranch, the El Caballero Ranch, and the 7 C's Ranch
subsequent to that common source of title as taken from those Deed Records and Official
Public Records of La Salle County, Texas which are appended to this Motion for
Summary Judgment,
Fi ure 4.
Grace River Ranch Title History
Document Date Recorded Exhibit
General Warranty Deed, Patrick FI, September 6, 1995 Volume 381, "Exhibit 7"
Welder, Jr. to John T. Mundy and Page 563, Deed
Sue E. Mundy Records, La Salle
County, Texas on
September 12,
1995
Special Warranty Deed, John T. December 17, 2012 Volume 664, "Exhibit 8"
Mundy and Sue E, Mundy to Roy Page 219, Official
and Bonnie Goodwin Family Ranch Public Records,
Trust (Veda Gwen Goodwin Treat La Salle County,
and Kelly Maxwell Goodwin, as Texas on January
Co-Trustees) 2, 2013
Special Warranty Deed, Veda December 31, 2012 Volume 664, "Exhibit 4"
Gwen Goodwin Treat and Kelly Page 227, Official
Maxwell Goodwin, Co-Trustees of Public Records,
the Roy and Bonnie Goodwin La Salle County,
Family Ranch Trust Dated Texas on January
December. 17, 2012 to Rio Gracia, 2, 2013
LLC
7 Refer to "Exhibit 34".
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Figure 5.
El Caballero Ranch Title History
-
Document Date Recorded Exhibit
Vendor's Lien Deed, Patrick H. February 3, 1997 Volume 392, "Exhibit 9"
Welder, Jr. to Knight Oil Tools, Page 229, Deed
Inc. Records, La Salle
County, Texas on
February 6,1997
Warranty Deed, Knight Oil Tools, March 30, 1998 Volume 400, "Exhibit 6"
Inc. to El Caballero Ranch, Inc, Page 83, Deed
Records, La Salle
County, Texas on
April 22, 1998
Figure 6.
Title History -7 C's Ranch
Document Date Recorded Exhibit
Warranty Deed, Patrick H. October 6, 1999 Volume 407, Page "Exhibit 35"
Welder, Jr. to E. J. Cop 409, Deed
(30,074.41 ac.) Records, LaSalle
County, Texas
Warranty- Deed, -E.J-, -Cop -to--March_22,-2010Q- -- --Volume-414, Rage
Dennis J. Wilkerson, Trustee 179, Deed
(15,000 ac.) Records, LaSalle
County, Texas
Warranty Deed, E.J. Cop to March 22, 2000 Volume 411, Page "Exhibit 37"
Dennis J. Wilkerson, Trustee, 208, Deed
Samuel H. Vester, Jr. and Joseph Records, LaSalle
P. Gerlich (15,074.41 ac.) County, Texas
6
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Title History -7 C's Ranch
Document Date Recorded Exhibit
Warranty Deed With Vendor's March 23, 2000 Volume 411, Page "Exhibit 38"
Lien, Dennis J, 'Wilkerson, 234, Deed
Trustee, Samuel H. Vester, Jr., Records, LaSalle
and Joseph P. Gerlich to Damon (Effective March County, Texas
Chouest, Inc, 22, 2000)
Correction Warranty Deed With April 18, 2011 Volume 572, Page "Exhibit 39"
Vendor's Lien, Dennis 3, 85, Deed Records,
Wilkerson, Trustee, Samuel H. La Salle County,
Vester, Jr, and Joseph P. Gerlich (Effective March Texas
to Damon Chouest, Inc, 22, 2000)
General Warranty Deed With December 18, 2000 Volume 417, Page "Exhibit 40"
Assumption of Security 11, Deed Records,
Documents, Damon Chouest, La Salle County,
Inc, to Laredo Marine, L.L,C, Texas
Correction General Warranty April 20, 2011 Volume 572, Page "Exhibit 34"
Deed With Assumption of 120, Deed
Security Documents, Demon Records, La Salle
Chouest, Inc. to Laredo Maine, (Effective County, Texas
L.L.C. December 18,
2000)
From my review of the Deed Records and Official Public Records of La Salle
County, Texas, it appears that contemporaneously with the creation and sale of the
present Grace River Ranch by Patrick H, Welder, Jr, on September 6, 1995, Welder
created and granted an "Access Easement Agreement" for vehicular and pedestrian
-access in favor- of John-L-Mundy and-Sue E: Mundy 4o the-present Grace River Ranch --
over and across Welder's retained property inclusive of the present El Caballero Ranch
and 7 C's Ranch properties and passing along a prescribed and surveyed route northward
toward FM 624, This Access Easement Agreement (recorded at Volume 382, Page 1,
Deed Records, La Salle County, Texas) provided in pertinent part:
(1) the easement was 80 feet in width;
(2) the access was for vehicular and pedestrian access along the described
route of the easement for each owner of the present Grace River Ranch,
their employees, agents, and invitees;
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(3) no barriers were to be erected to interfere with the free flow of vehicular
and pedestrian traffic across the present El Caballero Ranch and/or 7 C's
Ranch other than gates through which the easement owner might pass
without assistance;
(4) the servient owner was to provide the easement owner with all necessary
keys to open gates such that all gates could be freely opened and closed
without assistance;
(5) the easement was binding upon and inured to the benefit of all subsequent
owners of the servient and dominant estates;
(6) the easement could not be subsequently amended except by a writing by
the owners of the servient and dominant estates and signed and filed of
record in La Salle County;
(7) the easement was appurtenant to the present Grace River Ranch.
(hereinafter the "Northerly Grace River Easement").
From my review of the Deed Records and Official Public Records of La Salle
County, Texas which are appended to this Motion for Summary Judgment, it appears that
contemporaneously with the creation and sale of the present Grace River Ranch by
Patrick H. Welder, Jr. on September 6, 1995, Welder also created and granted an
additional "Access Easement Agreement" for vehicular and pedestrian access in favor of
John T. Mundy and Sue E. Mundy to the present Grace River Ranch over and across
Welder's retained property inclusive of the present 7 C's Ranch property and passing
along a described route towards State Highway 44.8 This second Access Easement
Agreement (recorded at Volume 382, Page 9, Deed Records, La Salle County, Texas
provided in pertinent part:
(1) the easement was 80 feet in width;
(2) the access was for vehicular and pedestrian access along the described
route of the easement for each owner of the present Grace River Ranch,
their employees, agents, and invitees;
— — --
(3) no barriers were to be erected to interfere with the free flow of vehicular
and pedestrian traffic across the present 7 C's Ranch property other than
gates through which the easement owner might pass without assistance;
(4) the servient owner was to provide the easement owner with all necessary
keys to open gates such that all gates could be freely opened and closed
without assistance;
B Refer to "Exhibit 41".
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(5) the easement was binding upon and inured to the benefit of all subsequent
owners of the servient and dominant estates;
(6) the easement could not be subsequently amended except by a writing by
the owners of the servient and dominant estates and signed and filed of
record in La Salle County, Texas,
(7) The easement was appurtenant to the present Grace River Ranch.
(hereinafter the "Easterly Grace River Easement").9
The Northerly Grace River Easement and the Easterly Grace River Basement are
sometimes herein collectively referred to as the "Grace River Easements".
From my review of the Deed Records and Official Public Records of La Salle
County, Texas which are appended to this Motion for Summary Judgment, it appears that
GRACE RIVER is the successor in title of the dominant estate of the Grace River
Easements, Below I have set out in tabular form the chain of title of the Grace River
Easements:
Fiaure 5.
Grace River Easements Title History (Dominant Estate)
Instrument Date Recorded Exhibit
Access Easement Agreement September 6, 1995 Volume 382, "Exhibit 10"
(Northerly), Patrick H. Welder, Jr, Page 1, Deed
to John T. Mundy, et ux Records, La Salle
County, Texas on
September 12,
1995
Access Basement Agreement September 6, 1995 Volume 382, "Exhibit 41"
(Easterly), Patrick H. Welder, Jr. to Page 9, Deed
_ ._ _
-Thi-T,- Mii-ndy; e tix - Rec-Ord-s, Ea Salle.• - - - -
County, Texas on
September 12,
1995
9 Refer co "Exhibit 41".
9
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Grace River Easements Title History (Dominant Estate)
Instrument Date Recorded Exhibit
Special Warranty Deed, John T. December 17, 2012 Volume 664, "Exhibit 8"
Mundy and Sue E. Mundy to Roy Page 219, Official
and Bonnie Goodwin Family Ranch Public Records, '
Trust (Veda Gwen Goodwin Treat La Salle County,
and Kelly Maxwell Goodwin, as Texas on January
Co-Trustees) 1° 2, 2013
Special Warranty Deed, Veda December 31, 2012 Volume 664, "Exhibit 4"
Gwen Goodwin Treat and Kelly Page 227, Official
Maxwell Goodwin, Co-Trustees of Public Records,
the Roy and Bonnie Goodwin La Salle County,
Family Ranch Trust of December Texas on January
17, 2012 to Rio Gracia, LLCI1 2,2013
LAREDO MARINE, as the owner of 7 C's Ranch, is the successor in title to that
part of the servient estate encumbered by both the Northerly Grace River Easement and
the Easterly Grace River Easement and lying within 7 C's Ranch per the chain of title set
out in Figure 6.
From my review of the Deed Records and Official Public Records of La Salle
County, Texas which are appended to this Motion for Summary Judgment it a.ppears that
the Northerly Grace River Easement is non-exclusive. Additional parties have valid
private and public easements along an identical route across, in part, the El Caballero
Ranch and 7 C's Ranch. These other private and public easements were originally
created in the following instruments:
10 The Grace River Easement was expressly conveyed as part of this transaction.
II The Grace River Easement was expressly conveyed as part of this transaction.
10
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Figure 7.
Additional Public and/or Private Easements
Along the Northerly Grace River Easement
Instrument Date Recorded Exhibit
Access Easement Agreement, March 31, 1995 Volume 379, "Exhibit 12"
Patrick H. Welder, Jr. to Jim Berry Page 52, Deed
and Bob Berry (hereafter the "Berry Records, La Salle
Easement") County, Texas on
May 15, 1995
Vendor's Lien Deed, Patrick H. February 3, 1997 Volume 392, "Exhibit 9"
Welder, Jr. to Knight Oil Tools, Page 229, Deed
Inc. (hereafter the "Welder Records, La Salle
Easement'')1 2 County, Texas
Right-of-Way Deed, Ruth Bradley February 3, 1939 Volume M-3, "Exhibit 13"
Watkins, Individually and as Page 390, Deed
Independent Executor of the Will Records, La Salle
and Estate of Griffin Watkins, County, Texas
Deceased, et al to G.A. Welhausen,
County Judge, La Salle County,
Texas (hereafter the "La Salle
County Easement").
No subsequent revocation or termination of these additional easements, signed by
all parties or successors in interest has been located in Deed Records or Official Public
Records of La Salle County.
On December 31, 2012, GRACE RIVER (then Rio Gracia, LLC) bought the
Grace River Ranch_and .aRpurtenant .easements, Inclusive. of _the Nortlierly Grace River _
Easement..13- Since that -date, -the Northerly Grace River Easement has never been
amended, waived, or released by any instrument signed by the owners of the dominant
and servient estates and recorded in La Salle County.
Exhibits 2-4, 11, 16, 19-26, 31-32 to this Motion for Sunmiary Judgment are all
business records of GRACE RIVER made or retained in the ordinary course of its
business and made or retained by someone whose responsibility it was to so make or so
retain the records. The person making or retaining these records had first-hand
12 The easement was retained in this Vendor's Lien Deed by Patrick H. Welder, Jr. at p. 3 [Exhibit 91.
13 Refer to "Exhibit 4".
11
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knowledge of the contents thereof. All of the records are true and correct copies of the
originals of such records in the files of GRACE RIVER. I am the Custodian of these
records of GRACE RIVER.
The Northerly Grace River Easement has the same utility, necessity, and
convenience for access to and egress from Grace River Ranch that it had on the date it
was created, The perimeter boundary of the Grace River Ranch has not changed since its
conveyance to the Mtuidys in 1995. Nor has there been any substantial change in the
private and public road system by which Grace River Ranch is accessed. There have
been no substantial changes in the flow, location, or nature of the Nueces River in the
area of the Low Water Crossing since the Northerly Grace River Easement was created in
1995, The Northerly Grace River Easement provides access from Grace River Ranch to
FM 624, Cotulla, and points northward and eastward. A good and substantial road now
exists entirely along the Northerly Grace River Easement save and except for
approximately 65 feet of the southern approach to the Low Water Crossing. GRACE
RIVER has been seeking access to the Low Water Crossing across the Grace River
Easement for the purposes of surveying and effecting repairs to the southern approach of
the Low Water Crossing, EL CABALLERO has refused access along the Grace River
Easement by locked gate for which EL CABALLERO refuses to provide key(s) or
access.
Appended to this Motion for Summary Judgment is my Resume/Vitae:4 This
Resume/Vitae summarizes my professional qualifications and experience as a Civil
Engineer, I have been a practicing Civil Engineer for 30 years and a licensed surveyor
for 22 years,
On December 31, 2012, GRACE RIVER bought the Grace River Ranch and
appurtenant easements all as described in the Motion for Surmnary Judgment, 15 This
included the Grace River Easement 16 Not long after this sale closed, I, as part of my
responsibilities with GRACE RIVER began looking for the owners of the El Caballero
Ranch, On February 19, 2013, I left a message for Dean Cole, who was identified as the
contact person for Knight Oil Company, who owns EL CABALLERO. On February 21,
2013, I left another voice message for Dean Cole and Lori Kendall, Dean's assistant,
returned my call and asked about the easement and there was an exchange of e,mails and
letters that were sent notifying Knight/Welder, pursuant to Section 7 of the Grace River
Easement, of the change in ownership of Grace River Ranch, I Was also answering
questions posed by EL CABALLERO represdntativs- doricerhing GRACE RIVER'S
ownership of the Grace River Ranch and easement, which conthiued trough the end of
February, 2013. Then on March 7, 2013, we received an e-mail from EL
CABALLERO/Knight OF Knight's notice of unilateral revocation of Grace River's
Easement rights across the El Caballero Ranch. During that exchange of
communications, I did request keys and access along the Grace River Easement as it
14 Refer to "Exhibit 25".
15 Refer to "Exhibit 4",
16 Refer to "Exhibit 4" and "Exhibit 10",
12
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traverses El Caballero Ranch." My purpose for this was to perform survey work on
some parts of the Grace River Easement and to perform repairs to the low water crossing
over the Mem River.
On February 28, 2013 I followed this up with an e-mail to Dean Cole, counsel for
Knight Oil Tools and EL CABALLERO providing information regarding the Grace
River Easement again requesting access along the Grace River Easement,
Notwithstanding these requests, EL CABALLERO has refused to grant access to
anyone on behalf of GRACE RIVER for the use of the Northerly Grace River Easement,
EL CABALLERO has kept the gates locked and actively refused any access along the
Grace River Easement.
On March 6, 2013, Dean Cole as counsel for EL CABALLERO wrote to Jeff
Davison, as counsel for GRACE RIVER a letter,19 This letter acknowledged my
inquiries about getting access through certain gates on El Caballero Ranch along the
Northerly Grace River Easement," Mr. Cole claimed that the Easement was
"abandoned" and had "failed of its purpose" and refused to grant any access along the
Northerly Grace River Easement.21
From my review of the Deed Records and Official Public Records of La Salle
County, Texas all as appended to this Motion for Summary Judgment, on or about March
5, 2013, E,L CABALLERO attempted to falsely and unilaterally terminate the Northerly
Grace River Easement, the Berry Easement (as defined by the Motion for Summary
Judgment), and the La Salle County Easement (as defined by the Motion for Summary
Judgment) by recording in the Official Records of La Salle County, its "Notice of
Revocation and Termination of Easement and Access Easement Agreements" under
claims of abandonment, failure of purpose, and irnpossibility.22
For 30 years I experienced working for various aspects of the construction
industry on civil improvements including road and drainage improvements. This
experience includes, design, inspection, and construction management of projects that
ranged in size from repair of three sections of Coquat Road in La Salle County up to a
four square mile golf/housing resort community in southern California with
improvements totaling in the hundreds of millions of dollars. I have had the opportunity
to work on the design and construction of several low water crossings when working for
Engineering Service Corp. as they were popular solutions to desert river crossings in that
area_ With my current-ernproyer, rhave_been givdn the TesTourcesito-ccdsttucrprojeas
such as this in a timely manner. We can undertake demolition projects, perform clearing,
move earth, prepare subgrade, install culverts, as well as manage the production and
placement of concrete all of which will be riecessary to complete the proposed repair
project.
17 Refer to "Exhibits 20" and "Exhibit 21".
18 Refer to "Exhibit 20".
j9 Refer to "Exhibit 24".
20 Refer to "Exhibit 24".
21 Refer to "Exhibit 24".
22 Refer to "Exhibit 18".
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08705.43065-00338741,DOCX)
I have personally and thoroughly inspected the Northerly Grace River Easement
at the site of the Low Water Crossing across the Nueces River (as defined in the Motion
for Summary Judgment) for the purposes of determining whether it can be repaired and
put back into service. The photographs of the Low Water Crossing which are attached to
this Motion for Summary Judgment at "Exhibit 26" truly, fairly, and accurately portray
the condition of the Low Water Crossing on each occasion on which I have inspected it
and all truly, completely, and accurately depict the condition of the Low Water Crossing
at present. The present low water crossing is of substantial construction and the largest
part of the original structure remains intact It appears to be decades old and for the most
part in good shape. All that needs to be done to repair it is to extend the low water
crossing another sixty-five (65) feet across a bypass channel which has developed on the
southern approach to the low water crossing, It is proposed by GRACE RIVER that this
sixty-five (65) foot extension would include six - six (6) foot corrugated metal culvert
pipes to facilitate low and high water passage. The eleven small culverth on the existing
crossing can be cleaned out and any voids in the concrete shell of the crossing back filled
with flowable fill. This should allow the present structure (as extended) to adequately
serve the crossing to prevent any future bypass channel formations. Personnel connected
with GRACE RIVER have extensive background, knowledge, and experience in building
roads and bridges, It is expected that GRACE RIVER would have access to all of the
expertise, personnel, contractors, equipment, etc, necessary to complete a renovation of
the Low Water Crossing not later than one month (weather permitting) from receiving all
necessary permits to commence the work. I anticipate that having completed this work
the Low Water Crossing will be in service for many more decades and will be designed
to withstand/survive the very rare high/low water flow events of the Nueces River just as
the existing structure has survived similar events.
Between September 9, 2013 and September 12, 2013, GRACE RIVER
constructed a single 6' tube low water crossing on the Grace River Ranch. Pictures of
this crossing are attached.23 The effort included removal of the existing gravel low water
crossing, grading and construction of a 35' long and 9' tall low water crossing with
appropriate concrete cutoff walls. The Nueces River repair of the Low Water Crossing
will be nearly twice as long (65') but the same top width (16'), nearly the same height
(10') and take much of the same construction knowledge and skill. The repair will not be
difficult to construct given the resources at the disposal of GRACE RIVER,
GRACE RIVER requested me to petition all necessary governmental authorities
to approve and permit this 'proposed extension of the Low Water Crossing, Application -
for the proposed extension to the southerly approach of the Low Water Crossing,
including details of the above-described plans, has now been made, completed, and
approved with all necessary governmental authorities. Attached are the following
approved permits:
I. Miscellaneous Easement No, ME20130153 as issued by the Commissioner of
the General Land Office of Texas.24.
23 Refer to "Exhibit 50",
24 Refer to "Exhibit 31".
14
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2, Corps of Engineers Permit (Project No. SWF-2013-00264.25
After GRACE RIVER purchased Grace River Ranch, I made it my responsibility
to get familiar with the Grace River Easements. In January of 2013 I went to the Low
Water Crossing along the Northerly Grace River Easement in company with Mike Treat
and others. On that date, we were allowed by Tibbets to freely traverse the Northerly
Grace River Easement down to the Low Water Crossing. We also vievved. the Easterly
Grace River Easement, We encountered a locked gate between the 7 C's Ranch and the
property adjacent to the East that had been put up by LAREDO MARINE, This gate had
typically had a Mundy lock on it to allow Mundy to have access along the Northerly
Grace River Easement. On this trip, for the first time, Mike Treat discovered that the
Mundy lock had been removed from the gate but was on a common chain left hanging on
the fence beside the gate. Additionally, the chain had a Medina Electric and unknowti
lock that were locked into the chain, Jim Tibbets, the Ranch Manager for 7 C's Ranch,
told us at that point that the gate had been recently repaired. A picture of the gate was
taken on that date and is appended,26 In this picture, Mike Treat is pictured on the left
hand side holding in his left hand the Mundy lock which was on the common chain,
Prior to the date of this January 2013 visit, Mundy and Treat had been unaware that the
Mundy lock had been removed.
On September 25, 2013, I asked Cliff Barnhill and Steve Meyers to travel to the
point on the Northerly Grace River Easement where there is a gate erected by EL
CABALLERO and take pictures of the area Pictures of this gate are appended 27 These
pictures were taken at my direction. I have been there physically on several occasions in
2013 and these pictures are true representations of the area There is nothing about this
gate which would indicate in any way that anyone connected with Grace River Ranch
was excluded or prohibited from using the Northerly Grace River Easement, There is no
signage near the gate to this effect. There is only a coded keypad located at the gate, By
means of this, someone desiring to use the road would punch in or otherwise seek access
through the gate.
Without access through the Northerly Grace River Easement (due to the Low
Water Crossing approach falling into disrepair), it is unlikely that someone would travel
to the El Caballero front gate from the Grace River Ranch front gate, That trip is
approximately 78 miles by car and takes approximately 1 hour and 45 minutes to drive.
It is way out of the way unless you are travelling the Northerly Grace River Easement as
a-through way However,-once the Low Water Crossing is repairedithis will-become the
preferred method for reaching Cotulla and all points north from Grace Rive Ranch,
In April of 2013, I took a helicopter, ride from the Cotulla Airport to Grace River
Ranch, Part of the route we used included all of the Northerly Grace River Easement
from the El Caballero Ranch gate to the Nueces River. The route appeared to be
maintained as an all-weather road and free of any barriers with the exception of El
Caballero's main gate,
2'sRefer to "Exhibit 32",
26 Refer to "Exhibit 44h,
21 Refer to "Exhibit 45",
15
( I 8705.43065-00338741 .DOCX)
Representatives of Grace River Ranch have used the Easterly Access Easement
freely since GRACE RIVER purchased the Grace River Ranch without any complaint or
opposition by anyone connected with 7 C's Ranch.
From my review of the Deed Records from La Salle County, it appears that by
Assignment of Access Easement Agreement dated April 1, 1995, and filed of 'record at
Volume 382, Page 84, Official Public Records, La Salle County, Texas, ROBERT G.
BRITTINGIIAM was the Assignee of the Berry Easement.28 From my review of the
Official Public Records of La Salle County, Texas, it appears that there was the execution
of a Revocable Permissive Gate Agreement dated October 31, 2002 and filed of record
on January 29, 2003 at Volume 430, Page 528, Official Public Records, La Salle County,
Texas 29 The Revocable Permissive Gate Agreement expressly recognized the continued
existence of the Berry Easement along the same path as the Northerly Grace River
Easement and permissively allowed for the erection of one gate across the path of such
easement to remain there at the pleasure of BRITTINGHAM,3° From nly review of the
Official Public Records of La Salle County, Texas, it appears that there is no effort by EL
CABALLERO to interfere with or repudiate the Berry Easement or any of the other
easements along the Northerly Grace River Easement until EL CABALLERO filed its
Notice of Revocation and Termination of Easement and Access Easement Agreements
dated March 5, 2013 and filed of record at Volume 680, Page 417, Official Public
Records, La Salle County, Texas.31 This was done just shortly before the institution of
this present suit.
From my examination of the records of La Salle County, I can find no record that
the Commissioner's Court of La Salle County has ever attempted any abandonment of
the La Salle County Easement by any methodology specified in TEX, TRANSP, CODE
ANN., Chapters 251, 252,
I have examined all gates lying along the Easterly Grace River Easement, I have
also examined the gates lying at either end of the Northerly Grace River Easement,
There are no permanent improvements constructed across either of the Grace River
Easements. There is no signage on any of these gates indicating that the Grace River
Easement or the La Salle County Easement are refuted, From my examination of the
gates at either end of the Northerly Grace River Easement, reconfiguring these gates to
provide access to GRACE RIVER can be done with bare minimal cost and expense. It
would be as simple as providing GRACE RIVER with the necessary access keys or
codes,. - There is ho-permanent improvement that has been constructed- across the Grace -
River Easement at any location I have driven the entirety of the Easterly Grace River
Easement. I have driven some of the Northerly Grace River Easement and overflown the
remainder, A good and substantial all-weather road is being maintained along the entire
length of the Grace River Easements. The only thing remaining to put the Northerly
Grace River. Easement into coMplete service are the repairs which I have described to the
Low Water Crossing. The gates which have been placed across the Northerly Grace
28 Refer to "Exhibit 51".
29 Refer to "Exhibit 52".
3° Refer to "Exhibit 52".
31 Refer to "Exhibit 18".
16
{18705.43 065-0033874 I ,00CX)
River Easement are "high fence" gates which have been apparently constructed to contain
wild game. I have observed no livestock in either one of these enclosures. There is no
unbroken boundary fencing across any of the Grace River Easements, There is nothing I
have observed which would render immediate use of the Grace Rivet Easements
impossible in any way.
From my review of the Deed Records, Official Public Records, and Deed of Trust
Records of La Salle County, Texas, it appears that LAREDO MARINE on December 18,
2000, contemporaneously with its acquisition of the 7 C's Ranch from Damon Chouest,
Inc, executed a Deed of Trust to Regions Bank,32 In that Deed of Trust, LAREDO
MARINE made certain warranties to Regions Bank regarding the status of its title to 7
C's Ranch in the middle of Page 3:
"WARRANTY: DEFENSE OF TITLE. The following provisions
relating to ownership of the Property [7 C's Ranch] are a part of this
Deed of Trust.
Title, Grantor [Laredo Marine] warrants that (a) Grantor holds
good and marketable title of record to the Property in fee simple,
free and clear of all liens and encumbrances other than those set
forth in the Real Property description or any title insurance policy,
title report, or final title opinion issued in favor, and accepted by,
Beneficiary [Regions Bank] 'in connection with this Deed of
Trust..".
The description for the Real Property ccintained in the vesting deed into LAREDO
MARINE specifically accepts and recagnizes. the existence of the Northerly Grace River
Easement, the Easterly Grace kiver Easement,.andthe La Salle County Easement.33
In addition, LAREDO MARINE 'executed two Modification Agreements to this
Deed of Trust dated respectively March 22, 2005,34 and another Modification Agreement
dated September 22, 2010.35 Both of these Modification Agreements provide:
Acknowledgement.. .Borrower [Laredo Marine] and Guarantors
hereby acknowledge, agree, and represent that. „(v) the representations
and warranties contained in the,. ,Deed of Trust,. • are true and correct as of
the date hereof„ ."
--•-••••••-• __ _ _ _ . _
By both of Modification Agreements, LAREDO MARINE acknowledged
and recognized the exigence and validity of the Northerly Grace River Easement, the
Easterly Grace River Easement, and the La Salle County Easement. All of these
instruments expressly warranted that LAREDO MARINE had good title to the 7 C's
Ranch save and except for these encumbrances."
32 Refer to "Exhibit 54".
32 Refer to "Exhibit 34",
34 Refer to "Exhibit 55".
35 Refer to 'Exhibit 56",
17
{18705.43065-00338741.DOCX)
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(18705.43065-00338741.DOCX)