There has been a long running legal dispute over the ownership of the historic locomotive given to the City of Topeka in 1956 to become a public display. The dispute involves the Coalition for Sustainable Rail, a Minneapolis based group that wants to rebuild the historic locomotive into a modern experimental prototype for a highly efficient locomotive that burns torrefied wood pellets as fuel; and a Topeka based group that wants to keep the engine in Topeka and display it as was the original intent.
Recently, the judge in the case made his decision, and I noticed in the Trains Newswire piece on this subject about a month ago, that they characterized this latest development as a victory for CSR. Other sources have reported it the same way.
Yet, the fact is that neither side won the dispute in the decision. The judge ruled that the Topeka group did not own the locomotive as they had claimed. He also ruled that CSR did not own the locomotive because they had purchased it from The Great Overland Station, who had mistakenly believed that they owned the locomotive. But GOS failed to prove that they owned #3463, so the CSR does not own the locomotive because the GOS had no right to sell it to them.
Then, surprisingly, the court found that the true owner was the City of Topeka who had believed they had sold the locomotive to GOS several years ago. So either side in this case could be considered the winner because the ownership claim
Since the City of Topeka ‘thought’ they sold it to Great Overland Station http://www.greatoverlandstation.com/and court says they didn’t; the question, to my mind, becomes Can the City of Topeka actually sell the locomotive to anybody?
I wonder why the city THOUGHT they had sold it. What negated that “thought”? Would that same reason prevent them from selling it “again”? Do they have to pay the one group back what was paid? (with interest?)
Ron’s a couple of months late to the party and I think he has missed much of the interesting stuff in the actual decision (which was linked in the prior thread, and which everyone should carefully read in appropriate context and with appropriate reference to Kansas law).
I have not seen a holograph copy of the original deed of gift from ATSF, but I do not remember it being “to” the City of Topeka as an entity, but rather ‘to the children of Topeka’ (which, probably not incidentally, is why that phrase was put in the now-discredited organization’s name). Where the “City” comes in is in the clause about that the locomotive should be kept in good order … the children of Topeka, even Boy Scouts, not being able to do that on their own … and one of the fun parts of the decision concerned whether the current state of the locomotive constitutes material breach (it clearly does, and on Topeka’s part not involving the volunteer group efforts that were the only meaningful work done on the locomotive before CSR’s involvement) or what recourse could be taken (ATSF has no recourse, probably by intent, and it will be interesting to see what Kansas law has to say about implied possession if the conditions in a deed of gift are violated by the implied possessor).
I’m pretty sure that GOS will have to refund something to CSR/SRI, and I suspect there may be some request for penalties or costs associated with fraudulent transfer. (I invite comments from the knowledgeable on here about how much ‘due diligence’ CSR should have done, or have been expected to do, with respect to the deal.)
Personally, much as I would like to see this locomotive modified to actually realize its design potential – or even be restored to operation with only ‘invisible’ functional redesign to make it work right – I think we have to go back to original intent. The locomotive belongs, and always has belonged since its donation, to the children of
The operative here is the word “Thought”… As Dieselization came to the AT&SF, the railroad ‘gifted’ (?) surplus steam locomotives to various city entities around the State of Kansas. {The language of the gifting documentation would be critical to the specific outcome of the case of #3463}
The location of that documentation is probably lost in system, as a product of time and shuffling documents around(?) . Some of the archives and files of the AT&SF RR are being held in the custody of the Archives of the Kansas Historical Society, in Topeka… One has to wonder if anyone has pursued that angle?
Mudchicken, would be a good one to ask about ‘former’ railroad properties, and how Politicians THINK they know all about those dispositions (Abandonments, gifts, etc.) [:-^] THings that can turn into pipe dreams, surprises, and disappointments, in a heartbeat.[yeah]
Not living in that area, I am somewhat surprised that the Corporate Shops of the BNSF in Topeka, has not gotten into this situation… They would seem to have a vested interest in the fate of #3463. Maybe they have, but it is not getting ‘out’ ?
Yes I read the decision a couple months ago, and I don’t think its net meaning is particularly obvious.
As I understand it, the City owns the locomotive and they can sell it to anybody. However, I have also heard that they made a commitment as part of the transfer from AT&SF, to display the locomotive in Topeka and keep it in good condition for that display. AT&SF required such commitment as a condition of the donation of 3463 and other locomotives to other recipients. I had heard about this condition long before it was confirmed in the court decision.
I have been told that when the City sold the locomotive to GOS, they did so informally on the advice of the City Attorney. Apparently the City Attorney told the City that they had the right to essentially give the locomotive away. A couple years ago, I sent a written request to the City, the County, and GOS asking if they had any records showing the transfer of ownership from the City to GOS. The City and County said they checked their records and they found that they had no record of ever receiving the locomotive or selling it. GOS told me that they had a record of receiving the locomotive from the City, but they could not find that record.
But, in this legal action, information has been produced that shows the City legally acquiring ownership of the locomotive from AT&SF. My assumption is that the court found that the City did not properly execute their informal, intended transfer of ownership of the locomotive to GOS as they were advised to do by the
Where does it say that, in black and white? Where is the signed acceptance in the name of the City of Topeka, signed by an empowered representtive of the City of Topeka? (As opposed to the document we have seen.)
Where is the paper trail that indicates the City Attorney saying legal transfer of title … assuming the City could do that in the first place … was not being executed properly? Was actual compensation paid by GOS as part of an acquisition?
Why is anybody still nattering about whether CSR ‘owns’ the locomotive? They don’t, and neither do any of the other ‘usual suspects’ – the discussion has passed on to who will be determined as the best ‘keeper’ in the interests of the group to which the locomotive was given. And one thing is certain: the resuscitated organization selfishly pretending to act in the “children’s” interest has no right to it whatsoever. The narrative in the decision points out in some detail why this is so, and why the admittedly-clever attempted use of Kansas corporate law didn’t work. I get the strong impression that the judge doesn’t think much of the group’s “prepaid-legal” grade representation or the strategies they thought would be so effective.
I think that is right; part of the current issue is tha
I am not presenting a court case here, so I have no intention of providing proper documentation for everything I say. I think that ought to be clear when I preface sentences with such phrases as “As I understand it…”
My point of mentioning that CSR does not own the locomotive is to clarify the point that they did not win the legal case in terms of the court deciding that they owned it and the Topeka group did not own it. Considerable commentary following the legal decision has indeed left the impression that CSR won the case by implying that the loss by the Topeka group means that CSR can proceed with their plans. This was clearly implied by the Trains Newswire article and by the CSR. So I think it quite pertinent to clarify that CSR was found to not own the locomotive just as the Topeka group was.
You are right that I was not there in 1956 when AT&SF presented the locomotive to the City, but I did talk to someone who was there. And the general idea was said to be to divide the ownership of the locomotive in order to protect it from any one person deciding its fate. I was told that AT&SF actually sold some sort of shares in the locomotive. This may be all distorted or it may not be true at all, but I certainly did not make it up. Obviously AT&SF had a strong interest in protecting the locomotive from meeting any fate that would have reflected badly on them. They had strings attached to the gift of the locomotive.
I’m not asking for a brief with ironclad proofs and precedents – I’m only asking for actual sources that can independently corroborate the things you say. When you say something I naturally assume that at least part of the reason for you saying it is that you have some facts or opinions to base your saying on, and those are what I’d like to know.
And that is, indeed, an important point to clarify … although it should be mentioned that the important thing the court did was establish that the Topeka group didn’t have any claim on 3463 whatsoever, which some of the propaganda from ‘the other side’ had tried to dilute or deny. I think it may be significant that CSR has remained close-mouthed about its upcoming planning and strategy, which may influence (negatively, I think) how the organization is perceived by the Topekans or Kansas judges, whoever they are, who will ultimately decide what will be done with the locomotive. Certainly no one should think that CSR has ‘won’ (unless winning is defined as the utter defeat of your opposition on completely different grounds).
Now see, we are getting somewhere. Who was that person, and how
Well that relates to my main point of this thread, which is to overturn the notion that CSR won and the other side lost.
You say, “And that [ownership] is, indeed, an important point to clarify … although it should be mentioned that the important thing the court did was establish that the Topeka group didn’t have any claim on 3463 whatsoever, which some of the propaganda from ‘the other side’ had tried to dilute or deny.”
The court decision went into substantial detail, on every ground involved (I would argue they went a little further to find any potential ground under applicable Kansas law) in determining the ‘reincarnated’ Petrel scam had no legitimate right to the locomotive at all.
The issue with CSR’s purchase is an issue for further action at law … which is ongoing; it’s yet to be decided in a trial whether there is some issue of contract, for example, or adverse possession, or breach of explicit covenant, that might leave CSR in “possession” of the locomotive. In the meantime, CSR (and, I believe, the Petrel flying circus, and I hope more responsible people in the Topeka area) are proceeding in parallel to work with City government to determine (and do more than a little lobbying, I suspect) should the results of the trial indicate CSR has no rights to 3463.
I think even you can appreciate the very material legal difference between what happened to Petrel et al. and the CSR people so far.
You seem sickeningly eager to keep putting words in my mouth that I not only have not said, but keep emphasizing are mistaken. No one could possibly say with a straight face that CSR has “won” anything; they certainly were not awarded possession or even control of the locomotive. But their case and claims are ongoing in court. That is not true of Petrel’s organization. They are out of it until the court proceedings, likely appeals, etc. are exhausted.
Now, if CSR chooses to ‘settle’ with the City of Topeka, for example by agreeing
In the interest of fair disclosure, I would also make the following SPECULATION (which is partially impelled by similar abuse of the justice system regarding Bostian’s criminal charges in Philadelphia):
I got the very strong impression, at multiple points in the decision, that the judge was making fun of the relative incopetence of Petrel’s legal “representation”, which as we know from previous threads was not provided by members of the ‘legal establishment’. Now I have repeatedly observed certain classes of lawyer use language, hairsplitting interpretation, etc. to make them indispensable even when demonstrably incompetent – for example, with respect to real-estate law and neighborhood covenants. I wouldn’t at all be surprised to find that at east some of Petrel’s problem is not so much the legal arguments as the perceived standing of the people who made them and then tried to argue with their ‘betters’ through the court system.
Perhaps he will learn something from this, if only in how to ‘win friends and influence people’. Or be more careful of the various toes involved if there is a next time for something he wants.
Wouldn’t it be interesting if BNSF, the corporate successor to the Santa Fe, came out and said “The hell with all this chaos and confusion, it’s OUR locomotive, and we’re taking it back! Topeka didn’t live up to it’s obligations, so there!”
Not likely to happen, but it WOULD be interesting. Hey, Warren Buffett’s a railfan, maybe he’d like his own personal steam locomotive?
Are you saying that there is presently court action underway to sort out these issues and decide whether CSR’s purchase was actually valid, and they own the locomotive? Is it firmly established that Great Overland Station never owned the locomotive, and that CSR’s attempt to purchase it involved only an agreement to purchase it from GOS?
If so, how might it be found in court that CSR owns the locomotive? What would be some specific examples of the details of an issue of contract, adverse possession, or breach of explicit covenant that might result in CSR being the owner of the locomotive?
I believe this possibility was specifically referenced in the decision, in the discussion of possible recourse to the clear breach of the requirement to keep the locomotive in good condition. While the successor-in-interest to the donor may have no right to enforce conditions ‘pursuant to a breach’ (since no recourse for that breach, indeed no recourse method for addressing amelioration or subsequent action in case of breach, is found in the deed of gift) it would seem quite clear that if a breach invalidates the document … and there is no language establishing severability of conditions, either … the gift might be voided and right, title, and possession of the locomotive return to the donor or its successor-in-interest.
That may well be an essential step in determining present ownership under the evident circumstances so far, so I wouldn’t wish for something unless you’re prepared to get it.
The question then becomes what BNSF would do with the thing. I doubt they would sell it outright to CSR,or establish a corporate partnership or JV in some way with the torrefied-fuel development, but that’s surely a possibility. My guess is that they would work up a slightly-revised contract, perhaps naming a specific representative or organization ‘on behalf of the children of Topeka’ this time, and be very caredul to assure that title, risk, and any other issues connected with the locomotive were fully addressed … forewarned is forearmed in this particuoar case, and there is a long history to consult for the forewarning part. This has the almost seductive attraction of stopping the entire wacky legal situation almost in its tracks in a simple, almost two-step process that might take a
Here is one personal opinion that will never happen, but one could hope.
In a perfect world, BNSF would step in and take back ownership of the locomotive, then lease it for $1 annually to the Friends of the 261 (of which I am a member and support financially to the best of my ability). They would have an opportunity to fund raise for the overhaul of the locomotive over a period of years, with the objective of having it ready when 261 next needs to go in for its 15 year overhaul. BNSF periodically runs Employee Appreciation Specials. 3463 is brawny enough to haul substantial consists in the upper Midwest.
BNSF tends to support and utilize 4449 in the Northwest, and 3751 in southern CA. 261 is supported and occasionally used by BNSF in the Upper Midwest. Perhaps 2926 will eventually be able to be utiized in New Mexico, Texas and Colorado. But an oil burning 3463 would be an ideal locomotive for any support in the Upper Midwest and in to Missouri and Oklahoma. An operable 4-6-4 in the US would really be great to have.
In the meantime, it is great to have 261 around in the Upper Midwest and to be able to contribute to its continued operation.
It was a beautiful locomotive (and will be again). But a short-stroke 300psi 84"-drivered locomotive that can barely make it past 100mph is no silk purse no matter how you can doll it up.
Easy to fix with even relatively slight passage, valve, and front-end changes, perhaps. But not the equal of contemporary designs, some of greater dbhp, including one family of ATSF locomotives.
Q? Why is that important. Zipping across the prairie or desert or into Denver at 80mph is more than suitable for fantrips. No way you will want to go faster than that anyway.
The hot rod or Porsche will be the T1 …where you run it at sustained high speeds is another matter. I’m sure the group has something in mind.
