4. Heart of the Matter

Heart of the Matter

The attorneys finally addressed the essence of the petition. Here is their response, followed by mine.

9

Defendants specially excepts to the plaintiffs’ original petition and states that same is fatally defective in that the premises claimed by plaintiffs is not described with sufficient certainty to enable defendant to identify the same as required by rule 783 (b), Texas Rules of Civil Procedure.

More specifically, defendant specially excepts to said property description because: (a) the metes and bounds description contained in paragraph one of plaintiffs original petition is defective in that the courses called for therein do not provide for a closure; (b) the said metes and bounds description does not contain sufficient information from which to locate on the ground the tract of land claimed by plaintiffs with any degree of certainty;

(c) the calls for courses contained in said meets and bounds description are substantially at variance with the courses depicted on exhibit “A” is defective in that it does not contain calls for monuments, courses, distances or ajoinder which would enable defendant to locate on the ground the tract of land depicted thereon.

My Rebuttal:

O'Connor's Attorneys

Defendant specially excepts to the plaintiffs’ original petition and states that same is fatally defective in that the premises claimed by plaintiffs is not described with sufficient certainty to enable defendant to identify the same as required by rule 783 (b), Texas Rules of Civil Procedure.

Me:

Here is the textbook definition of what they are alluding to:

783 (b): "A description of the premises by metes and bounds, or with sufficient certainty to identify the same, so that from such description possession thereof may be delivered and state the county or counties in which the same are situated."

In other words, because of the scant paragraph provided at the beginning of the petition which used archaic survey coordinates, it is not enough to pinpoint the exact location of the Becerra land grant. I grant them this and blame more so the attorneys we had. You cannot come at his army of well-trained attorneys with a scant paragraph giving vague coordinates. They pulled another technical got ya. What can you do, it's part of the Texas Rules of Civil Procedure. It had to be specified.

O'Connor's Attorneys:

More specifically, defendant specially excepts to said property description because: (a) the metes and bounds description contained in paragraph one of plaintiffs' original petition is defective in that the courses called for therein do not provide for a closure.

Me:

What I think they're saying is that if you look at the paragraph that surveyor David Snively wrote in 1849, it does not clearly close the parcel of land. He starts in one direction with coordinates and Varas as unit of measure, but then veers in a different direction where you can't see it closing. It would take a trained GIS instructor or professor in the field of geology to look at it and make sense of the coordinates. I don't know what the (family's attorneys) were thinking just slapping on the petition these barely legible coordinates, but it didn't work with O'Connor's team. They spotted the defect.

O'Connor's Attorneys:

(b) the said metes and bounds description does not contain sufficient information from which to locate on the ground the tract of land claimed by plaintiffs with any degree of certainty;

Me:

Well, this is what they're good at. Working with coordinate locations, distances, boundaries, maps, etc. The 1849 survey coordinate description is a tough one to follow. They knew it, our attorneys didn't know it. Played right into their hands.

O'Connor's Attorneys:

(c) the calls for courses contained in said metes and bounds description are substantially at variance with the courses depicted on exhibit “A” is defective in that it does not contain calls for monuments, courses, distances or ajoinder which would enable defendant to locate on the ground the tract of land depicted thereon.

Me:

Well, here we go again. Kings of technicalities and formalism strike again. This is a no brainer, they were gonna slay whoever came at their "daddy." So, family attorney Alvin Harris lays an egg, and of all the damn maps he could have picked, he went and picked a 1954 geological ariel survey map. Seriously? Could have picked General Land Office Maps: 1879, 1883, or 1896! But no, he had to lay an egg. Another thing, these people are trained to look for things like monuments, stakes, posts, etc. The survey notes do not give but "trees" as posts from which to measure. Thanks' a lot David Snively, fine job you did. In all likelihood those trees are long gone. My next post will revisit an earlier post of mine that depicts surveyors measuring, marking with stakes, planting markers. It's from the "There Will be Blood" movie. I'll stop here...