Hattiesburg City Council members have voted to approve law firm Adams and Reese LLP to serve as counsel for the city in the legal battle regarding ownership of a historic locomotive housed at the Hattiesburg Train Depot in downtown.
With that vote, which was taken at the August 2 council meeting, the scope of the firm’s initial work will be directed by city attorney Randy Pope, but that process may be revised throughout the litigation on the matter. Pope is authorized to make litigation decisions in conjunction with city officials, and Adams and Reese will participate in discussions – or other forms of analysis of potential decisions – as requested by the city.
“We haven’t got into discovery yet, and whether we do or not, we’ll just have to see,” Pope said. “(Gee Ogletree of Adams and Reese) is a specialist in property law, and there are a number of legal questions about the train – is it personal property, is it real property, or what kind of property is it?
“So I felt like we needed somebody with some expertise, so they’re going to be here (at an executive session) to kind of brief the council on where things stand and where we might go, as far as seeing if we can resolve it or not. I don’t know whether we can or not, but we have some ideas, but they’re going to be briefing the council, and we’ll also hire them formally to represent the city in connection with this case.”
On March 11, the city filed a petition for a declaratory judgment, temporary restraining order and other measures against Valley Railroad Company regarding the Bonhomie & Hattiesburg #300 that sits at the train station. The suit claims that on June 26,2000, the city acquired the property on which the train is located from the Alabama Great Southern Railroad Company.
As the locomotive was already located at the site, city officials erected a plaque near the train outlining its history. The suit states that there is no identification anywhere on the site showing the train belongs to any other entity than the City of Hattiesburg, at least since the city acquired the property in 2000.
“The city has maintained the real property on which the locomotive sits, including, but not limited to cosmetic maintenance (including sealing off leaking asbestos from the locomotive), City of Hattiesburg officers patrolling the location and securing the locomotive from homeless persons; permitting the community, particularly children, to view the locomotive and enjoy its presence; erecting and maintaining a fence to protect the locomotive,” the suit reads. “In addition, the city permitted Warren Paving Company, a local company, to expend a significant amount of money ($55,000) in restoring the outside of the locomotive. The locomotive is part of the history of the area, and particularly the City of Hattiesburg, and provides educational and cultural enrichment to the citizens of Hattiesburg and surrounding areas.”
According to Hattiesburg’s suit, the locomotive has sat for more than 20 years at the same property, and as such, city officials believe the city owns the train, in part, because of abandonment. City officials also believe that if the railroad company was allowed to remove the train, that that measure would result in a high likelihood of damage to the city’s infrastructure.
However, on June 24, officials from Valley Railroad Company filed a response to the city’s complaint, stating, among other issues, that Hattiesburg’s complaint is filed in bad faith, the locomotive has been stored on Hattiesburg’s property with the express permission of the railroad company.
“The latest thing they have filed is a request for a petition, which means if you’ve got a piece of land … and you’ve got more than one person who owns the property, and they can’t get along with each other, what do you do with the property?” Pope said. “Well, there are two things: either the judge can physically divide the property (between the two people), but what if you’ve got a piece of property that really can’t be physically divided?
“You sell it and divide the proceeds, which is what we’re asking for. Now, whether that’s something the court has the power to do is a good question. There’s a lot of legal questions out there that are not being answered.”
The company’s response lays out some history of the ownership of the train, which was purchased from the B&HS Railroad in 1968 by Fred Kepner of Oregon, who owned several steam engines throughout the country. As part of the purchase, the B&HS granted Kepner the right to store the locomotive in the engine house in Hattiesburg, but as the result of a merger, Kepner was directed to remove the locomotive from the engine house for demolition.
Kepner then secured permission from the Mississippi Great Southern Chapter of the National Railway Historical Society to store the locomotive, at which point it was moved to its present location.
Kepner passed away in October 2021, at which point his sole heir entered into an agreement to sell the locomotive to the Oregon Coast Scenic Railroad, a non-profit organization. The Valley Railroad Company then contacted the Oregon State Scenic about the acquisition of the train, and sent a mechanical crew to Hattiesburg to determine whether it would be viable to restore the engine to steam operation.
The crew concluded that was a viable measure, and then entered into a contract for purchase of the locomotive. When the Valley Railroad Company began making plans to move the locomotive to their shop in Connecticut to begin restoration, Ann Jones – who serves as chief administrative officer for the city – contacted the company via email to express the city’s desire to keep the train in Hattiesburg.
“As I understand, the locomotive has been at our train depot for over 50 years and many generations have come to identify that locomotive with our downtown and train heritage,” the email states. “To that end, the City of Hattiesburg would like to keep the old 300 in its home at the depot.
“The City of Hattiesburg would like to request that the locomotive be transferred to the City of Hattiesburg’s ownership. By doing so, the city would then be in a legal position to expend public funds on the locomotive and begin to develop a preservation plan for the train. As a public entity, we are eligible for several preservation opportunities, that, as a privately owned train, the locomotive has never qualified before.”
The Valley Railroad Company asserts that it was only after that email that the city ever had asserted a claim for the locomotive. The company’s suit includes several bills of sale and claims of ownership throughout the years.
Recently, Pope discovered that one-third of the interest of the locomotive had been held in the trust of a woman who recently passed away. The city purchased that portion of the interest, with the remaining two-thirds held by Valley Railroad Company.
“I couldn’t predict how long (this) will take,” Pope said. “We would like keep the locomotive in Hattiesburg; that’s pretty obvious, and the other folks would like to take it to Connecticut.
“So we’ll see what happens.”