Fine,

Let's take a look at Indiana statutory law. The stuff you were saying about "tools of the trade" and the like can be found at IC 32-31-4-1, which states:



The section goes on to explain the warehouseman stuff, and whatnot.

However, if you go up a section and look at the definition of tenant, it is defined as:



If you read down the statute, for the part about how a tenant is to take possession, terms like "dwelling" and "personal property" are used, meaning that this whole piece of law deals with residential tenants and residential landlords, of which in this case neither ITM or the City of Noblesville fit into.

So by my reading of the actual Indiana statutes, I do not see where Mr. McDowell's arguments apply, as his analysis appears to be deeply flawed.

Good evening all,

Strangely I find myself (once again) agreeing with Mr. Wilkins on this point. The problem here is that the eviction "process" is effectively over.

The court has ruled.

The hearing has been had.
The evidence has been presented.
The Court has issued its findings of fact and law.
The order of eviction has been signed.
The eviction process has been clearly set forth in the order.

The public / private interest balancing act the court did in its conclusion effectively eliminated any chance at obtaining a stay, except in one circumstance.

The likelihood of any successful appeal is virtually zero. In fact, the filing of a petition for an appeal could possibly be deemed "frivolous".

There is only one legal remedy available to ITM which could effectively delay (but would not stop completely) the execution of the Court's order. Their ability to effectively use that one legal remedy will disappear at the 11:59 pm on July 12th.

Ironically, once upon a time, way back in the distant past, another well known railroad museum made effective use of the one legal remedy that ITM has remaining. Unfortunately, ITM chose to pursue a different path instead.

I'm not judging whether ITM's previous actions were good or bad, but rather, this is where we are today, and the remaining options aren't good. If ITM had taken certain legal action before their lease expired, they might have achieved some of the goals they attempted to secure via the litigation strategy they pursued instead.

At this point, the dam has broke, and the water is gone.... It is time to pick up the pieces, repair the damage as best we can, and learn from the experience. Blaming people at this stage won't stop the remaining equipment from being destroyed.

Moving it to safety will.

I would agree that there is nothing the ITR can say or do at this point and there is no hope for a appeal. They were already given a extension from the first eviction and did nothing. They had some time to do something before the court date yet did nothing. I am firmly convinced even if the court gave them another 6 months very little would have been moved. This person in charge of the museum just doesn't understand how dire this situation is. He is lucky the judge even gave him two weeks. I think most judges would have given this man 24-48 hours to vacate.

Considering scrapping is the worst outcome which is already happening. I can only pray that the land seizure by the Sheriff can not come quick enough. Then the assets will go to a auction in a few months where prospective buyers will have funds, transportation, and plans for the remaining equipment.

My hats off to the various individuals and companies that have saved and continue to negotiate sale of some of the equipment. You will not be forgotten. Thanks also to the many individuals spreading the news! It seems to be spreading like wildfire now. Many of us including myself just learned about this recently.

Anyone else find it ironic that there is a untouched reefer in the background of a scrapped SW1? God forbid we actually start scrapping cars with little to no value. After this is all over the new Indiana Transportation Museum will have on display....One flat car (circa 1983), one reefer car (circa 1975), one grain car (circa 1981), and the crown jewel of the collection one ex Conrail gondola (circa 1967). That will be the entire collection.

It's more a case that the statute is deeply flawed, and fails to contemplate a commercial eviction of this type.

You can say "that shouldn't apply" all day, and I concur with the notion, but what does apply then? Once the injured party limps into court seeking redress, the judge must give him an answer likely to survive appeal, and that has to be based in law, not "don't like it".

Wilkins: then you should have cited the commercial code.

Eric: I agree. The phase we're approaching is the "abandoned property" phase.

This judge, while vicious, was also fairly careful to "rack em up" like ten-pins to align ITM to their fate. He used language carefully and in a manner referential to that statute. If the judge had meant to say the warehouseman procedure did not apply, he would have said so, specifying a different procedure and finding a basis in law to support it. He did not.

When a judge refuses to say something, that itself is a thing.

Why do I think the judge had his code book open to the statute while writing the order? The judge swerved out of his way in B to use the term-of-art "abandoned", when I'm sure his legal education includes words like forfeit. He also specifically addressed in E the state's prohibition (well, disdain is more accurate) of "self-help" evictions, and the statute's reference to warehousemen, by explicitly assiging the warehouseman role to the sheriff. (E.g. Rather than allowing the city to contract it to, say, the incoming operator.) again, why not simply instantly forfeit it to the city? And in D he contemplates that equipment is unlikely to be spirited away to a third party storage site, as statute requires -- and ITM may need to access the site, possibly extensively and without supervision, after July 13 to obtain more of its items. There is no other reason for D to be there, he could as easily made it contempt of court for any ITM agent to even look at the property cross-eyed - given the mutual loathing, wouldn't he if he could've?



If not the above code, then some similar commercial statute that the greatest legal minds on RyPN have yet to uncover. Remember, corporations *are* persons, and the law must specify "natural person" if it means the kind with blood.

I could be wrong.

One more thing back on that, why doesn't the judge just order the left property instantly handed to the city? There's an old adage, "judges are cowards". They like to stay on the well-trod paths of law (unless they're the Glorious Ninth). ITM is expected to lose this property as a result of the government orders, so it will amount to a taking. That creates a mother of a Fifth Amendment problem unless the government shows that it complied with all relevant laws chapter and verse, and erred on the side of the defendant. There's no winging it here. And yeah, this is a big mess.

And I stick by my guns that expecting a railway museum to move in such a short amount of time creates an "impracticability" problem, esp. since the government had a hand in creating the problem. They were complicit in forming a railway museum there, they removed the interchange that would've made this easy (everything on TTX flats), and chose the horrible November date to evict since roads would not allow heavy traffic til May.

Suppose it is really true, that there is a conspiracy to seize the museum property and bring in another owner/operator. Just that justify the revenge scrapping of irreplaceable artifacts?

I know nothing about this museum or the people involved, but I'd go so far as to say the above would apply to any similar situation.
How many times have we seen a piece of equipment or collection that "Has to be moved in the next few minutes or it'll get scrapped," way too late for anyone to do anything to save it?
And why is that? Because someone either didn't think it'd really happen or was holding out for someone with deep pockets who never showed up. Procrastination became the order of the day and far too late for anyone to help (and knowing no big payday was coming, the plea comes to have the stuff moved goes out way past a date to work out).

I for one would be happier to hold off and see the deadpool before castigating judgment. With a little benefit of the doubt, I can see why most of the scrappings so far are not unreasonable. The 4000 Els have been basket cases since at least 2011. The SW1 was a cosmetic display and had already been picked for parts.

Why shouldn't ITM just leave them behind? Because the city has made clear it intends to rebill ITM for all cleanup costs and then some, the city will definitely scrap the units, and it's cheaper for ITM to do it themselves than pay a padded city bill.

I also think, from the information I have gleaned, that so far ITM has accurately assessed the desire of the market to take the units. I myself was after 3 units, and all are taken, and I would like to talk with the takers about a 3-way swap.

You need to go back and read the Court's Order again. ITM signed a lease that had a short notice of termination period. We have to assume that ITM is a sophisticated entity, because it is incorporated, and has resources the average citizen may not have. ITM overstayed the lease without moving a piece of equipment.

Courts in this country generally recognize the freedom of contract. ITM entered into an agreement and then tried to get out of it, citing "public policy" which is the bane of most conservatives. If ITM needed more time to move, then it should have negotiated a different deal when it signed the now-expired lease. If they couldn't negotiate a better deal in 2015 when they signed the current lease, then they should have started moving then, realizing they could be in the situation they are in now. Why should we hold railway museums to a different standard than a private business? Just because an incorporated entity is apparently incompetent is not a compelling legal reason in which to use the court to save the museum from itself. That's not the role of a court.

Finally, ITM was the reason the interchange at Tipton was torn out by NS a number of years ago.

What I see in your posts is an unwillingness to believe that ITM and ITM alone is accountable for its actions and the results of those actions. While it's fun and trendy to blame "government" for ITM's woes, the real fact is that the government landlord was likely a lot more lenient for years about the situation. A private landlord would likely have kicked ITM to the curb a long, long time ago.

[quote="wilkinsd"]

Quote: "Finally, ITM was the reason the interchange at Tipton was torn out by NS a number of years ago. "

I live in Noblesville and have No part of ITM, but I have followed this for years, filed a letter of protest with both Mayors and a copy of that was included in my filing with the STB.

This is the first that I have heard this regarding the removal of the diamond at Tipton and I would like to know your source.

I was told by many, including a member of the HHPA that NS did not want to retain the diamond at Tipton and that the port authority did not want to pickup the cost to maintain the diamond, so they told them, they would have no objection if it was taken out.

Now, I was also told, that NS offered to allow a switch to be installed in the southeast corner off the NS mainline and that the port would not cover the cost of that and told NS they were not interested. The property in that corner was owned by NS, and has now been given to Tipton for a park.

This has been one of my major complaints since the start of the ownership by the cities and county. Hamilton county has NO INTEREST in any major industry in Hamilton County. There main concern, has been easements. Past people who have been put in charge of the port authorty, have been put there because of politics.................

ITM as the tenant of the line could have insisted that a connection to the outside world be maintained, or could have paid for the switch, as part of their agreement with HHPA to operate. They did neither, and apparently did not operate with a formal agreement with HHPA the last 5-6 years they operated. That should have been an indication of trouble.

Yes sir, you are right on that, but ITM was NOT the owner. There were many here that told ITM to do something to interchange cars with NS and CSX, even if it was car loads of ballast.

ITM is in the problem that they are in today, because of their management or lack there of.

I have know of ITM since about 1974 and this has always been a problem, as with most railroad museums. ITM took all power away from their members and the board had all power.

I was involved with the Indiana Railway Museum for a number of years and was even a director. Like most of these museums, there is someone that thinks he is the absolute BOSS. When I started with the Indiana Railway Museum, Alan Barnett was in charge, it was his way or the highway and he is still in charge.

Aside from the rolling stock pieces which are difficult/expensive to move, do we know anything about the smaller pieces that a non-wealthy individual would be able to save and preserve? I'm talking about things like signals, carts, signs, paper documentation, etc.

Somebody, quite recently, spent the time to give this item a nice fresh paint job and cosmetic restoration, so it was not worthless junk. And if it was junk, somebody else should have told somebody no. 1 not to bother with the paint job.

Good lordie, .... Where does one begin?

Robert,

I appreciate your passion. I can appreciate your love for the preservation of rail equipment, as I too, like you, like to see our unique railroad history preserved. I can appreciate your outrage over the events unfolding in Nobelsville.

I appreciate your desire to engage in a vigorous and open debate on the subject matter.

However, I'm beginning to seriously struggle with many of your arguments which continually put me and Mr. Wilkins in agreement and on the same side of the argument.... I'm finding this level of agreement with him to be seriously disconcerting (since we are usually debating opposite sides of many arguments here).

I first must say - you really need to find a copy of Black's Law Dictionary and look up the definition of "abandonment" before continuing with your argument. Abandonment in NOT a "term of art" in the law. It is VERY specific, and extremely well defined. The case law regarding abandonment is so well established that virtually every possible scenario (i.e form of abandonment) which could likely occur has probably been ruled on by the courts at least 100 times over. Even most college student who have had a basic business law class gains a basic understanding of this well established legal principle.

The decision (Page 22 at B) is precise and unambiguous. If ITM (or ANY of its sub tenants as they are defined in paragragh A) has left existing structures, additions, equipment, or property upon the premise beyond July 12, 2018, The Court has found those items are to be deemed "abandoned". Abandonment is considered a voluntary relinquishment / forfeiture of said rights. This concept is universally understood.

There is no wiggle room in that part of the order. All the parties are on notice. If it is left on the premise after July 2018, it is abandoned. Your rights to said property have been found by the Court to be forfeited. PERIOD.

WARNING --- WARNING --- WARNING

I keep hearing people say in this thread ... "If you have a valid bill of sale from ITM, you will be able to remove your property at a later date if you have an agreement with the City."

THIS ANSWER IS WRONG.

People keep forgetting about the clear unambiguous language in Paragraph E

Paragraph E states (in part):

"After July 12, 2018, to all extents necessary, the Sheriff of Hamilton County
County is hereby empowered, ordered, and directed to dispossess and remove
ITM, and all other occupants and/or property from the Premises ... "

People keep forgetting this one critical point: The Court has given a direct order to the County sheriff's to remove and de-possess all other occupants (and their property) as well as ITM.

Why is this significant? .... NO ONE (other than the Judge himself) HAS THE LEGAL AUTHORITY TO ALTER A DIRECT ORDER OF A COURT!!

The Court's specific instruction to the Sheriffs Department is absolute, and the County Sheriff has no authority to do anything other than what he is ORDERED to do... He is an officer of the Court, and he will OBEY that court order to its letter.

THERE IS NO PROVISION in the Court's order for this concept of "We'll let those with private equipment escape the direct order of the Court if you have the City's blessing."

Its not in the plain language of the Court's order. The City cannot tell the Sheriffs Department to ignore the Court's specific order. There can be no side deals! .... it is not permitted.

There is a reason why my organization is only looking at certain pieces of equipment, and only in certain places. I'm extremely cognizant of the explicit language contained in the Court's order. The only thing that ITM may still have color-able title to after July 12, 2018, is that equipment which sits on the siding in Cicero.

The ONLY equipment my organization has an interest in is the equipment which can be legally defended against the court's order. Unless someone who knows exactly what they are doing ("legally speaking") in that regard, even that equipment may be subject to attack by the Court's order. I've got only one set of legal arguments I can deploy against an attack on titles to that equipment. Even then, it may, or may not be, successful...

Could part of the problem many preservation groups face (like ITM) is that they fail to operate like a business and depend too much on other's to contribute time and money for their existence?

Operating like a business means if you can't afford to purchase and maintain something don't buy or accept it. If you are buying your own property/trackage with a solid rail connection (which is a way to solidify your future) do your homework and make sure you have money in the bank for a good down payment or an endowment gift before signing for a loan.

Operate like a lot of short lines ... accomplish much by having very little.
Don't try to be all things to all people.

exprail