GONZALES — Austin Presbyterian Theological Seminary, a non-profit academic institute in Travis County, seeks ownership of Gonzales' J.B. Wells park by way of reversion of the 1962 Last Will and Testament of J.B. Wells, wherein the 123-acre parcel the park is built upon was left to the City of Gonzales.
The seminary has filed a petition in Gonzales County, naming multiple parties to the suit, including: the City of Gonzales, Gonzales Mayor Connie Kacir, Councilman Dist. 1 Gary Schroeder, former Councilman Dist. 3 Lorenzo Hernandez and former councilman Dist. 4 Clarence Opiela.
"Council is aware of the lawsuit and has retained special council to handle the matter," Kacir said. "We will allow the process to move forward toward a resolution of the issues."
Other than the mayor's statement, the city has been reticent to answer questions about the lawsuit. City Manager Sean Lally abstained from comment on the suit, saying he would not want to jeopardize the future of proceedings.
Petitioner's attorneys are Johns, Mars, Ellis and Hodge LLP.
The petition was filed on July 13, 2017.
Factual allegations in the petition state the following:
"In his 1962 Will and subsequent Codicils, J.B. Wells, Jr. Deceased ("Wells"), left more than 123 acres to the City of Gonzales "for public park purposes" (Subject Property"). In his Will, Wells described generally what he intended by "public park purposes," including preservation of the native trees, shrubs, and deer. In leaving other bequests, Wells distinguished "public park" from other uses, such as "recreation and campground" use."
Other terms of the factual allegations are:
"Wells provided for the reversion of the Subject Property and any income from the subject property to the Petitioner if the city failed to observe the limited use.
In 1999, the trustees serving under the Will deeded the Subject Property to the City of Gonzales by Written instrument ("1999 Deed"). In the 1999 Deed, the trustees reincorporated Wells' restriction, and the Seminary's rights to the Subject Property, should the City fail to comply. The Trustees included these further conditions expressly providing for a forced sale.
The City of Gonzales has gradually developed the Subject property to include a recreational vehicle campground, a rodeo and sports arena, and, in 2016, an exposition and convention center. These improvements generate and income for the City.
In 2011, the City of Gonzales entered into an oil and gas lease with a third party for the exploration and production of the minerals on the Subject Property. The City was paid a bonus of $138,000 in 2011."
Wells' Will addresses the land gift and use as follows:
"I Direct my trustees to grant and convey the 123 acre tract of land known as the Santa Anna tract located around my Santa Anna Mound Deer Park and bounded by Highway 183 and the right of way of former State Highway No. 29 with the exception of a twenty-three acre triangular shaped parcel of land cut off by a partition fence in the corner of said tract nearest the Guadalupe River Bridge, the remainder of that portion of said 311 acre Santa Anna Mound tract of land on the same side of relocated Highway No. 183, as the Santa Anna Mound and Deer Park containing 123 acres of land, more or less, to the City of Gonzales, Texas, for public park purposes, subject to the conditions hereinafter set out.
(a) Said land shall forever be used for the purpose of establishing, operating and maintaining a public park thereon and for such purpose only and shall never be sold.
(b) Said land and grounds shall always be known as "Wells Park" it being my wish to establish the park as a permanent memorial to my father, Jim Bailey Wells, and my mother, Josephine Henry Wells, both pioneer citizens of Gonzales County, Texas.
(c) Such grant and conveyance shall reserve to my executors the right to create and maintain on said land, at the expense of my estate, a suitable monument or monuments to the memory of my father and mother. I direct my trustees to create a monument near the front gate of my camp lodge similar to the shape of those created by the State of Texas in the centennial years 1935-1936, made of gray or blue granite. Such a monument was erected in memory of Sarah Sooley in the old DeWitt Cemetery only a short distance from my lodge. I direct my trustees to have placed on this monument the following inscription:
ERECTED BY THE DONOR OF THIS PARK
J.B. Wells, Jr.
IN MEMORY OF HIS FATHER
JIM BAILEY WELLS
AND HIS MOTHER
JOSEPHINE H. WELLS
PIONEER CITIZENS OF TEXAS
The Codicil to Wells' Last Will and Testament states if any of the land around the Santa Anna Mound bequeathed to the City of Gonzales for park purposes be condemned by government action the proceeds of the condemnation be used to improve the property. It also states if the property is sold by trustees a portion of the property would become the property of First Presbyterian Church of Gonzales, to be used as a recreation place for the church and if the church ever sells that portion of the property the proceeds of said sale shall immediately revert and become the property of the seminary.
Causes of action in the suit are Inverse Condemnation, a term used in the law to describe a situation in which the government takes private property but fails to pay the compensation required by the Fifth Amendment of the Constitution, so the property's owner has to sue to obtain the required just compensation.
Under the Inverse Condemnation heading the petition outlines the following findings:
"Petitioner has a vested interest in the Subject Property at the time that the City of Gonzales exceeded and continues to exceed the limitations of use of the Subject Property.
The City of Gonzales intentionally performed act(s) that proximately caused a physical taking of the Petitioner's rights to the Subject Property for public use.
The City of Gonzales's taking was without Petitioners consent or adequate compensation to Petitioner."
The next finding is Trespass to surface and minerals, as to the Individual respondents; and, states the mayor and aforementioned councilmen, in their official capacities, are wrongfully in possession of the Subject Property, bot surface and minerals. The finding is that the respondents' use of the Subject Property is physical, intentional, voluntary and unauthorized and has caused injury to the Petitioner's right of possession.
The final finding is Breach of Deed and states:
"Petitioner is successor-in-interest to the grantor of the Deed by which the City of Gonzales claims an interest in the subject property. The Deed incorporated the Will and provided for restrictions on the use of the Subject Property and income from it.
The City of Gonzales agreed to be bound to the Deed's restrictions by its acceptance of the Subject Property.
The City of Gonzales has breached the terms of the Deed. This breach has caused damages to petitioner."
The final prayer of the petition states:
"Petitioner seeks injunctive relief and possession of the Subject Property and income therefrom, equitable relief, damages, and/or general relief."