Because it wasn't the question before the Court. The Court only had one issue before it, who owned the locomotive. None of the parties in the case, CSR, Topeka, or the Children group would have standing to bring a claim for breach of the agreement with regard to maintenance.

Think about it. Who would be the only company that would have standing to claim that the agreement had been breached with regard to maintenance?

That would add a Big New element to the discussion..... but would they want to get involved at all?

They'd have to file some sort of other action, but I seriously doubt BNSF (the successor to ATSF) really cares.

My read is that, besides BNSF, the only avenue for enforcement of the term of sale regarding the City of Topeka's obligation to maintain the locomotive is for a critical mass of politically influential Topekans (?) to convince the Attorney General of the State of Kansas to sue the City of Topeka on their behalf. Involvement of the State's Attorney General's Office may convince the City that the locomotive is more trouble than it is worth and compel them to transfer ownership. If this is the approach chosen by the preservation-minded residents of Topeka, then they would be wise to first have a professional and politically well connected non-profit organization incorporated with the resources (management, technical, and monetary) in place for restoration and safe storage and display.

Even if the issue of the City’s failure to maintain the locomotive were brought to court, I do not see how that could solve any problem. Wouldn’t this amount to BNSF attempting to repossess the locomotive?

If BNSF did successfully recover ownership, I suppose they could then decide to donate the locomotive to someone else with an interest. They could decide the present choice of whether to give the locomotive to the Children of Topeka group or CSR. That is an interesting thought. Which group do you suppose they would choose?

The entire dispute would involve the City’s failure to maintain the locomotive as donated to them by ATSF. Which of the two groups would reinstate that mission? Would it be the group that wants to restore the locomotive to its original cosmetic condition, preserve and protect it, and display it in the town to which it was gifted by ATSF? Or would it be the group what wants to use it for a “test bed” for a design concept to reverse dieselization with a return to new steam? Which alternative would BNSF choose?

Your read could not be more wrong, unless you know some quirk about Kansas law that I do not know that allows the state to insert itself into contract litigation between a municipality and a third party.

STANDING is key. Standing means you have the ability to bring a suit. Here, the sale/donation agreement with the condition stipulation was between ATSF and Topeka. The only parties that could bring a suit against Topeka for failing to follow the contract is BNSF, who is presumably the successor of ATSF. IN terms of the sale/donation agreement, BNSF is the only potentially aggrieved party that has STANDING.

As someone who works for a State's Attorney General's office, I can tell you that they typically have better things to do than investigate municipalities who default or fail to follow 50 year old contracts. The remedy for breach of contract is civil. BNSF's remedy is probably some sort of money damages stemming from the breach. It's a difficult provision to enforce and even more difficult to calculate how damages would be assessed. I don't know why people are focusing on this.

More importantly people, let us get realistic.

-BNSF is probably not going to sue Topeka for repossession of the 3463.
-CSR is probably not going to make the 3463 operational again.

If you are concerned about the future of the 3463, then I would suggest that either you or your group make a proposal to the City of Topeka to take the locomotive off of their hands. It would be more productive than coming up with baseless, pie-in-the-sky schemes to try to obtain legal retribution against the City of Topeka.