Article from Flimsies:

Lawsuit seeks to seize control of NNRy rails
bowens@rypn.org

In the article, the plaintiff is "V&S." Could this be the same "V&S" responsible for the recent demise of other rail lines in the Midwest/Plains States? If so, it's our age old nemesis, A&K Materials, the wiley & eeeevviiill rail-scrappers out of KC...

hi_plain@yahoo.com

I don't get how this company can come in and file suit to get the ROW when the lawful owner is in the process of selling it to someone else. The article doesn't explain why they thinnk they have the right to do so. Can anyone enlighten me?

jmann@asyst.com

> Could this be the same
> "V&S" responsible for the
> recent demise of other rail lines in the
> Midwest/Plains States?

Reading further down in said article, it IS the same outfit. V&S is A&K's shortline "arm" of their far-reaching scrap operation.

hi_plain@yahoo.com

> I don't get how this company can come in and
> file suit to get the ROW when the lawful
> owner is in the process of selling it to
> someone else.

Logic would seem to dictate that, given said conditions, the suit ought to be thrown out. Clearly, no formal legal agreement had been reached by the V&S with the city, when it was learned of V&S's true nature, and negotiations were terminated.

No lawyer I, but it sounds to me as if V&S is trying to utilize the referenced legal statute in a left-field manner [aka, "mis-apply"]. My guess would be they hope the judge will "mis-apply" the statute, too...

hi_plain@yahoo.com

Thinnin' more about this, it occured to me that other preservation/railroad organizations, especially those who potentially could find themselves in similar situation[s], could file friend-of-the-court briefs on behalf of White Pine/NNRy/Ely..

hi_plain@yahoo.com

While I have not read the suit and am not familiar with the statutes on which V&S is relying, a first impression says this is one of those pesky "takings" lawsuits. Creative lawyering has made this the latest evolution in civil litigation wherein a plaintiff, with often flimsy evidence, uses a legal loophole to get something for nothing. From another perspective, this particular suit -- using eminent domain claims as it does -- seems to be an attempt to force an owner uninterested in selling into negotiations.

Usually, condemnation proceedings by common carriers are filed against non carrier interests such as private property owners or government agencies that "own" streets and other public rights-of-way. Purchasing or leasing an existing rail or pipe line or other piece of related infrastructure is the normal procedure when a carrier needs to complete a transportation system. Under normal circumstances, if a deal cannot be struck, the rejected buyer always has the option of leaning off their wallet and building their own duplicative physical plant. Given the capital required for such endeavors, some deal usually is struck IF the seller is willing. Since most everyone has a price, deals usually result. (Recall the windfalls that came the way of the old C&NW when UP and BN found the C&NW owned the only line near the Powder River Basin's coal deposits. Ka-ching, ka-ching!)

In essence, it is another iteration of the old "lien" game often used by the unscrupulous to sully an obviously clear title to a home, business, or other asset. In many western states where this lien filing shuck-and-jive became a serious problem, this loophole has now been either legislatively closed and Bar members admonished against filing such frivilous lawsuits, or court clerks and judges now scan for these litigatory nuisances filed by private citizens and refuse to put them on a docket.

All of this legal mumbo jumbo now spread of record, I think it behoves us to determine the plaintiff's REAL and strategic business goal. To summarize, this lawsuit may have been used to "get the attention" of those with established interest in the line and as a lever to negotiate some agreement allowing V&S to pursue its real objective.

I would greatly appreciate it if some RYPN participant can keep us up to date on this matter. It will be interesting to see how local interests proceed to preserve their historic railroad.


amiller@rtms-movietrains.com

See some learned speculation in my comments on a post below.

amiller@rtms-movietrains.com

> Article from Flimsies:

It doesn't look very hopeful for V&S, in my rosy view. The relevant cite is clearly intended to encourage and enable construction of NEW railroads and the continuance of one's own EXISTING lines, not allow a grab by one corporation of another corporation's assets. If what V&S is trying to do is legal, UP could have just condemned the WP in Nevada and operated it - and WP could have turned around and condemned it right back.

Also, I wonder what a Nevada corporation has to do in order to be recognized as a railroad? Does V&S meet THAT threshold? I'm guessing you have to do more than put the word "railroad" in your corporate name.

JAC

NRS 37.230 Condemnation by railroad companies. Any company incorporated under the laws of this state, or constructing or operating a railway in this state, in addition to other rights conferred, shall have power:

1. To enter, by its servants, upon the real property of any person, for the purpose of selecting an advantageous route for its main line or any branch thereof, or for the purpose of relocating its line, subject to responsibility for all damages resulting therefrom.

2. To acquire by purchase, donation or otherwise, all such real and personal property as may be necessary for, or may be given to aid or encourage the construction and maintenance of its railroad and for its buildings and yards.

3. To condemn, in the manner provided by law, a right-of-way with such additional lands as may be necessary for depot grounds or for the purpose of constructing necessary embankments, excavations, ditches, drains and culverts.

4. To cross natural or artificial streams or bodies of water, streets, highways or railroads which its road may intersect, and in such manner as to afford security for life and property and subject to the duty of immediately restoring such course or body of water, street, highway, or railway to its former condition, as nearly as may be.

5. To cross, intersect, join or unite its railroad with any other railroad, either before or after the construction, at any point upon its route, and upon the grounds of such other railroad corporation, with the necessary turnouts, sidings and switches, and other conveniences in furtherance of the objects of its connections, and every corporation whose railroad is or shall be hereafter intersected by any new railroad, shall unite with the owners of such new railroad in forming such intersections and connections, and grant facilities therefor.

6. To construct and operate spurs or branch lines of railroad connecting with the main line or any branch thereof, not to exceed 5 miles in length each, though such spurs or branch lines be not named or described in the articles of incorporation, and to relocate any section or sections of its lines between the principal termini, with the same powers as in the case of original or first locations.

[1911 CPA § 685; RL § 5627; NCL § 9174]

Not an attorney either and I suppose the lawyers for the defense would probably do this, but it seems like someone could put together a brief for the court (filing as a friend of the court or whatever) demonstrating V&S's history with previous scrappings and how this is not in the best interest of our national railway network.

This kind of (seemingly) spurious legal action makes me wish they would be hit with all court costs, lawyers fees and a punitive fee if this is thrown out of court.


tnold@northtexastransport.org

Wouldn't this ultimately end up before the Surface Transportation Board if the parties can't agree on terms?? This seems to have an effect on interstate commerce.

> While I have not read the suit and am not
> familiar with the statutes on which V&S
> is relying, a first impression says this is
> one of those pesky "takings" lawsuits.

Would "Friend-of-the-Court" filings help in any way?

Mark Bassett of the Nevada Northern Ry Museum is a regular contributor here. It would do well to forward this thread to him..

hi_plain@yahoo.com

> Wouldn't this ultimately end up before the
> Surface Transportation Board if the parties
> can't agree on terms?? This seems to have an
> effect on interstate commerce.

I don't know. But I don't think it will get that far.

I ran this by a lawyer friend at a meeting last night. He has some eminent domain law experience, and his description of V&S' claim sounded very similar to "male bovine waste."

What will face the court is this:

a. eminent domain claims must serve the public interest.

b. there are two options available, both of which purport to keep the line operating. One requires eminent domain condemnation, one does not.

c. V&S's claim to eminent domain is suspect unless it is chartered as a railroad by the Nevada Legislature or Congress.

d. finally, the question of whether eminent domain law is intended to allow a railroad to build lines and keep them open, or whether it allows one company to lay claim to the existing railroad of another company.

The outcome looks pretty clear. Getting there will probably be a pain in the . . .

JAC

> Mark Bassett of the Nevada Northern Ry
> Museum is a regular contributor here. It
> would do well to forward this thread to
> him..

I have forwarded this thread to Mark Bassett, executive director of the NNRy Museum in Ely.

Cheers,
Keith Albrandt

Nevada Northern Railway Museum
kalbrandt@rypn.org

They often are a last resort, or are used by interest groups to inject themselves into the issue because said group either needs publicity or has a true vested interest in the outcome.

I agree with John Craft that the matter will be disposed of rather quickly, but not before lawyers ring up lots of billable hours and an cloud of uncertainty is created that takes some time to evaporate.

One must hope that the judge in the court of original jurdiction soundly spanks the plaintiffs.