ATSF locomotive debate heads to court ; ATSF: Documents trace ownership, attorney says

A lengthy debate about the ownership of the Atchison, Topeka and Santa Fe Railway steam locomotive currently located near the Kansas Expocentre has now entered the court system.

When ownership of the ATSF No. 3463 engine was officially transferred from Railroad Heritage, Inc., to Minnesota nonprofit Sustainable Rail International in January 2013, SRI officials had no idea controversy would arise from the sale.

"We were careful in the beginning with the Great Overland Station to be sure that we had clarity with the transaction," SRI president Davidson Ward said Thursday.

But months later, Topeka Children and Santa Fe Railway -- a nonprofit that was created in 1956 but lost its status in 1973 -- was reinstated by a small group of Topekans who didn't want to see the historic locomotive leave Topeka. The group has been vocal about its passion for the locomotive and claims it was given ownership of the locomotive by ATSF in 1956.

On May 21, SRI's attorney, Matthew Bergmann, of Frieden, Unrein & Forbes in Topeka, filed a petition for declaratory judgment to quiet title in Shawnee County District Court. Bergmann said Thursday the petition aims to end claims of ownership made by Topeka Children and Santa Fe Railway.

The filing includes documents Bergmann said trace the title of the locomotive all the way back to the Atchison, Topeka and Santa Fe Railway.

"Ownership of the locomotive was not granted to TCSFR by the Atchison, Topeka & Santa Fe Railway Company, in any form, either in 1956 or at any other time known," the filing contends. "TCSFR's claims of ownership of ATSF #3463, in any form, are unsubstantiated and without merit."

Jerry Petrel, president of Topeka Children and Santa Fe Railroad, said Saturday the group won't comment until its attorneys have reviewed the filing. The Washburn University Law Clinic is the group's counsel of record.

"We were expecting it," Petrel said. "It's what needs to happen, I think."

In a copy of the filing, which Bergmann provided to The Topeka Capital-Journal, defendants in the suit are listed as Topeka Children and Santa Fe Railroad; Jerry Petrel, Phillip Dittmer and Thomas Dittmer, both as individuals and as "Caregivers on Behalf of The Children of Topeka," a title the men used in previous correspondence with SRI and Bergmann; and any unknown owners of the locomotive.

The filing claims the Atchison, Topeka and Santa Fe Railway transferred ownership of the No. 3463 locomotive to the city of Topeka in 1956.

A copy of that bill of sale is attached to the filing as an exhibit. The bill of sale is dated June 11, 1956, and states that ATSF transferred and donated the locomotive to the city of Topeka for $1. It also states that by accepting it, "the city agrees that it will keep said locomotive and tender in a clean, attractive and sightly condition so that the same shall not at any time be or become unsightly or dilapidated in appearance."

At the time of the transfer of ownership, the locomotive was moved to what was then the Kansas Free Fairgrounds, located where the Kansas Expocentre now stands.

The filing contends the city did provide care and upkeep on the locomotive after its dedication in November 1963. In the early 1980s, when construction began on the Expocentre, the locomotive had to be moved. An inquiry was made about its ownership, and Shawnee County Counselor John R. Martin provided written opinions in January 1982 that were filed with the Shawnee County Board of Commissioners. Copies of those opinions, which state the city owned the locomotive, also were included in the filing.

The city moved the locomotive to its present location but didn't want to keep paying for its upkeep and liability insurance, the filing says, so it transferred ownership to Topeka Railroad Days, Inc., in 1990.

Topeka Railroad Days planned to move the locomotive to the grounds of the Great Overland Station as part of the station's restoration, the filing claims, but didn't have funds for the move. However, they retained ownership, insured it, and provided care and maintenance until 2011, when the group that operates the Great Overland Station -- which had by then changed its name to Railroad Heritage, Inc. -- entered into negotiations for the locomotive's sale to SRI.

Ward said Thursday that SRI also purchased the locomotive for $1. It will now spend about $1.5 to $2 million to move, restore and retrofit the locomotive in an attempt to prove the viability of modern steam technology and a solid biofuel called biocoal, a carbon- neutral fuel that SRI hopes will provide cleaner, cheaper energy worldwide.

SRI already invested a significant amount of money into a cosmetic restoration of the locomotive that began in May 2012, a few months after it entered into the purchase agreement, Ward said. Although SRI would have moved the locomotive to Minnesota by now if not for TCSFR's ownership claims, he said, SRI has focused on research efforts in the meantime.

"This is the last thing we want to do," Ward said of the lawsuit. "We're not interested in going to court, we're not interested in this undertaking, but I think we've been left with no alternative."

The locomotive is slated to be used in CSR Project 130, a collaboration between SRI and the University of Minnesota'sInstitute on the Environment. Its goal is to create the world's cleanest, most powerful passenger locomotive. It will be tested with a plan to break the world record for steam locomotive speed by reaching 130 mph.

After SRI completes its project, Ward said, the No. 3463 can be returned to the same appearance it had when ATSF donated it to Topeka in 1956.