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TO THE HONORABLE JUDGE OF SAID COURT:

Plaintiff, City of Dallas ("the City''), files this Original Petition and Application for

Injunction, complaining of Defendant, Museum of the American Railroad ("Museum',). For

causesof action, the city respectfully shows the court the following:

DISCOVERY CONTROL PLAI\ AND REQUEST FOR DISCLOST]RES

1. The City intends to conduct discovery under the Level 2 discovery control plan.

2. The City submits its requestsfor disclosure requesting the Museum to submit its

responsesto those requestspursuant to Rule 194 of the Texas Rules of Civil Procedurewithin 50

days of service of this Petition.

PARTIES

3' The City is a home-rule Texas municipal corporation situated in Dallas County

and additional counties, with its principal municipal offices in Dallas County.

4. The Museum is a Texas nonprofit corporation with its office and principal place

of businessin Dallas County, Texas. The Museum may be served with process by serving its

registered agent, Stanley D. Smith, at 1105 Washington Avenue, Fair Park, Dallas, Texas,

75210.

ORIGINAL PETITION AND APPLICATION F'OR INJTINCTION

Page1 of9
 JURISDICTION AND VENUE

5. This Court has jurisdiction of this action under Article 5, Section 8 of the Texas

Constitutionas well as Sections24.008 and24.011 of the Texas GovernmentCode becausethe

city assertsclaims under the common law and requestsinjunctive relief.

6. Venue is proper becausethe City has its principal office in Dallas County, all or a

substantial part of the events or omissions giving rise to the City's claims occurred in Dallas

County, this controversy involves real property located in Dallas County, and the defendant has

its office and principal place of business,and is doing business,in Dallas County.

FACTS

7. This lawsuit concerns the Museum's unauthorized occupation, use, and

possessionof public property located in Fair Park in Dallas, together with all improvements

located thereon. The public property which the Museum is occupying is approximately 1.19

acresin size and is located on Washington Avenue, near its intersection with Haskell Avenue, as

shown on the map of Fair Park, attached hereto as Exhibit "A,, and incorporated herein by

reference (the "Property'). Additionally, an aeial photograph of the property showing the

approximately 1.19 acres that the Museum is occupying is attachedhereto as Exhibit 668" and

incorporated herein by reference. The City is the owner of the Property and the property is

currently being used by the Museum as a railroad museum. Various railroad cars and

locomotives, railroad tracks, a depot and other assorted appurtenances (collectively

"Equipment") arelocated on the Property.

8. Upon information and belief, the Museum uses all or most of the Equipment as

part of the Museum. The ostensible purpose of the Museum is "to share the rich history and

heritage, as well as the current and future development of, the American Railroad.', See the

ORIGINALPETITIONAND APPLICATIONFORINJI.INCTION
Page 2 of 9
Museum's website homepage at Museum of the American Railroad, Fair Park, Dallas, Texas,

http ://www. dall asrailwaymuseum.com/ (last visited J an.9, 20 10).

g. The Museum and its predecessorshave used the Property for many years without

the payrnent of rent or utilities, with the consentof the City until recently. The Museum charges

admission to membersof the public. According to the Museum's website, "Admission is free for

members, $5.00 for adults $2.50 for children ages 3--I2. Under 3 years are free. Guided tours

$7.00", Age of Steam Railroad Museum - Hours of operation,

http://www.dallasrailwaymuseum.com/hour.html(last visited Jan. 9, 2010).

10. On or about March 26, 2008, the City Council of the City of Frisco, Texas,

approved a memorandum of understandingwith the Museum whereby the Museum would move

itself and its Equipment to a location in the City of Frisco. The Museum has statedto the City

that it will leave its location in Fair Park and move to Frisco.

11. After being informed that the Museum was planning on leaving the Property, the

City attempted to enter into an agreement with the Museum to address its occupancy of the

Property pending the move to Frisco. It has been more than 15 months since the City first

requested the Museum to enter into such an agreement. The Museum has wholly failed and

refused to enter into any such agreement.

12. The City has provided the Museum with a reasonableamount of time in which to

relocate to Frisco. However, the Museum has failed to vacate the Property. In addition, the

Museum has refused to provide the City with a date when it will vacatethe Property.

13. The City desiresto utilize the Property as a part of the State Fair groundsprior to

the 2010 State Fair of Texas. This prompted the City to advise the Museum that it neededto

vacate the Propertyby August of 2010 so that the City could utilize the Property for the State

ORIGINALPETITIONAND APPLICATIONFORINJI.INCTION
Page3 of9
Fair. The City needs sufficient time to have the site cleared and made ready for use as part of the

State Fair or for other purposes. The City is prevented from doing so since the Museum has

failed to vacate the Property and has failed to give the City a specific date when the move will

occur.

14- After the long delay on the Museum's part in failing to execute an agreement

regarding its occupancy of the Property, the City sent the Museum a letter on December 3,2009,

again asking the Museum to execute an agreement concerning the further occupancy of the

Property. On December 11, 2009, the Museum responded to the City's letter stating that it is

continuing to take time to make the move to Frisco, but it does not statewhen it will be vacating

the Property.

15. On Decembet 14,2009, the City sent the Museum a letter stating that if the City

has not received a signed agreement from the Museum outlining the terms of the Museum,s

continued occupancy of the Property by December 18, 2009, then the Museum must vacate the

Property. A true and correct copy of that letter is attached hereto as Exhibit ,(C', and

incorporated herein for all pu{poses. The Museum has not provided the City with a signed copy

of that agreement. Furthermore, the Museum and its Equipment oontinue to occupy and

encroachupon the Property.

16' The City incorporates by reference the allegations in Paragraphs 7-15 of this

pleading in each of the claims assertedbelow.

FIRST CLAIM. TRESPASS

17. This causeof actionarisesunderthe commonlaw of the Stateof Texas.

18. The City is entitledto possess,use,and enjoy its public property. By refusingto

vacatethe Property after being requestedto do so by the City, the Museum is unlawfully

ORIGINAL PETITION AND APPLICATION FOR INJTJNCTION

Page4 of 9
 trespassingupon the Property and has deprived the City and its citizens of their use of public

property at that location.

SECOND CLAIM _ PUBLIC NUISANCE/PURPRESTURE

19- This causeof action arisesunder the common law of the Stateof Texas.

20. Since at least the time on and after the date by which the Museum was directed by

the City to vacate the Property unless the Museum executed an agreement regarding
its
continued occupancy of the Property, the Museum's occupation of the property has affected,

restricted, and prevented the public's exercise of its right of immediate, unfettered,
and

unconditional accessto the Property.

21. Additionally, placing or maintaining property such as the Equipment on public

property, thereby restricting public use of and access to the Property, without the
express
permission by the City Council of the City, as the owner of the Property, as a matter of
law is a

purprestureand constitutesa per se public nuisancewhich the City demandsbe abated.

INJTINCTIVE RELIEF

22. The City seeks injunctive relief to restrain and enjoin the Museum from the

continuing trespassand encroachmenton the City's property, including the maintenanceof its

Equipment on the Property, without the consentand permission of the city.

23- The Museum's actions threatenirreparable harm to the City becausethe Museum

is occupying City property without the City's consent and permission and the City is prevented

from using the Property for other pu{poses. The City has no other adequateremedy at law
to
prevent such unlawful trespassand public nuisance/purpresfure.

24' The Museum's actions are completely without right or entitlementbecauseit does

not have the City's permission to occupy the Property and the City has sent a written demand
to

ORIGINALPETITIONAND APPLICATIONJ'ORINJT]NCTION
 the Museum to vacate the Property, with which the Museum has wholly refused to
comply. The

Museum continuesto occupy the Property.

25. Unless the Museum is temporarily restrained from occupying the property,

including the maintenance of its Equipment on the Property, the Museum will
commit the

foregoing acts before a final trial on the merits, and if the commission of theseunauthorized
acts
is not immediately restrained,the City will suffer immediate and irreparable injury.

26. Additionally, the City requests,upon a final trial on the merits, the issuanceof a

permanent injunction enjoining the Museum and its employees, successors,

assigns, tenants,

representatives,and agents from occupying the Property without the City,s permission
and
consent and ordering the Museum to vacate the Property, remove its Equipment,
restore the

Property to the condition that existed when it and its predecessorsbegan occupying the property

and remedy any environmental hazndsor conditions existing on the property.

27- As a matter of law, the City is not required to post a bond to obtain injunctive

relief.

JURY DEMAND

28. The City requestsatialby jury on all issuessotriable.

ORIGINAL PETITION AI|ID APPLICATION F'ORINJUNCTION

Page6 of 9
 PRAYER

WHEREFORE, PREMISES CONSIDERED, the Cityprays that the Court:

(1) cite the Museum to appearand answerthis lawsuit;

(2) issue, before a trial or other final hearing, a temporary injunction enjoining the

Museum and its employees, successors,assigns, tenants, representatives, and agents from

occupying and encroaching upon the Property and commanding the Museum to remove at its

expenseitself and its Equipment on the Property within sevendays of the entry of the temporary

injunction;

(3) issue, after a trial or other final hearing, a pe(manent injunction enjoining the

Museum and its employees, successors,assigns, tenants, representatives, and agents from

occupying and encroaching upon the Property and commanding the Museum to remove at its

expense itself and its Equipment from the Property, restore the Property to the condition that

existed when it and its predecessors began occupying the Property and remedy any

environmentalhazards or conditions existing on the Property within seven days of the entry of

the permanentinj unction;

(5) renderjudgment awarding the City costs of suit, and

(6) grant the City such other and further relief, at law or in equity, to which it is justly

entitled.

ORIGINAL PETITION AND APPLICATION FOR INJT]NCTION

Page7 of 9
 Respectfullysubmitted,

Y OF THE CITY OF DALLAS

StateBar of TexasNo. 03969230

AssistantCity Attorney
Office of the City Attomey
7BN DallasCityHall
1500Marilla Street
Dallas,Texas75201
Telephone: (214)670-3508
Telecopier: Qlg 670-0622

ATTORNEY FOR PLAINTIFF

CITY OF DALLAS

ORIGINAL PETITION AI\D APPLICATION FOR INJTJNCTION

Page8 of 9
 YtrRIFICATION

STATE OF TEXAS
COI.TNTYOF DALLAS

I, Daniel Huerta, Assistant Director, Dallas Park and Recreation Department, after
being
duly sworn, hereby certiff that I am qualified and authorized to make this affidavit,
and that I

have read each and every factual allegation contained within paragraphs7-15, inclusive,
of this
Original Petition and Application for Iry'unction and that said factual allegations
are within my
personalknowledge and are true and correct.

Subscribedand swornto beforeme this&"v of January20T0.

.z zyh"-^,
Notary Public of the Stateof Texas

ORIGINAL PETITION AND APPLICATION FOR INJ{INCTION

Page9 of 9
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 Museumof the AmericanRailroad
DallasFair Park
PLAINTIFF'S
ExHlBlr
!
 rOi
City of Dallas
December14,2009

Sentbyfacsimile,email,andfirst classmail
RobertLaPrelle
ExecutiveDirector
Museumof the AmericanRailroad
P.O.Box 153259
Dallas,T){75315-3259
ceo@dallasrailwaymuseum.com
Facsimile: 214-426-1937

DearMr. LaPrelle:

This resp_onds to your letter to me datedDecember11,2009. As I statedin my prior letter to

you, the City valuesthe relationshipthat it haswith the Mur"u* of the American
Railroad. That
being said,the Museumis the only tenantat Fair Park without a written agreementwith
the city
authorizingit to occupyanduseCity property.

Fifteen monthsago, the City told the Museumin a meetingthat it would need
to executean
agreementto remainon City property. More than 100 daysago, City representatives
reiterated
that to Museumrepresentatives in anothermeetingand statedthatthe M.r."o- would needto
vacateCity propertyby August l, 2010 so that the City and the StateFair of Texas,
Inc. could
eam substantialrevenuesfrom that propertyduring th; 2010 StateFair. Because
the Museum
could not commit to ceaseusing and occupyingCity propertyby that date,the
City agreedto
give the Museumanotherversionof the agreementittut *ouia give
the Museumthe option of
extendingthe agreement by a yearif thel\4useumposteda bond,iertificate of depositor ietter of
credit(collectivelyreferredto as'ofinancialsecwity"), which it would forfeit if it
hadnot vacated
the propertyby August 1, 2010,and allowedthe Museumto remainon the property
for the next
yearuponpostinganotherfinancialsecurity.

Both versionsof the agreementwere deliveredto you threemonthsago. After

waiting for more
than two monthsfor a substantiveresponse,t finalty wrote you askingfor the
Museumto sign
one of the versionswithin 12 days or the City would taki appropri"ateaction to compel tte
Museumto vacateCity propertypromptly

hleply, you suggestyet anothermeeting,but you still did not identiff any specific
concemwith
either versionof the agreement.With all due respect,we had the meetingyo,,
are requesting
morethanthreemonthsago. Accordingly your requestcreatesthe appearaicethat
the Museum
is stalling.

The City agreesthat it does not want its long-standing relationship with
the Museum to become
adversarial' But surely the Museum does not expect the City to continue
to allow the Museum to
squaton City propertyat substantialexpenseto the City?

OFFICEOF THECIryATTORNEY CITYHALL DALLAS,TEXAS75201 TELEPHONE

2141670.3519FN( 21
 Letterto RobertLaPrelle
December14,2009
Page2of2

As a courtesy,the City is giving the Museumuntil December18,2009(insteadof December15, I

2009),to executeone of the agreements and returnit to me. If the Museumdoesnot do so by
that date,the Museumwill no longerhavethe City's permissionor consentto possess, occupyor
use City propbrty as of that date and the City will take all appropriateaction to compei-the
Museumto vacateCity propertypromptly

I hope to receive an executedagreementfrom the Museum by December1g, 200g.In

the
meantime,CouncilmemberNatinsky and I are willing to meet with you on short notice
at a
mutually agreeabletime and place to discussthis matter further, but you shouldnot take
our
willingnessto meet as a sign that the City is not seriousaboutresolvingthis matterin the near
future.

Sincerely,

e.e;* Ba*rJr*
ChristopherD. Bowers
First AssistantCity Attorney

c: The HonorableTom Leppert,Mayor

The HonorableRon Natinsky,City Councilmember
Tom Perkins,City Attorney
Mary Suhrn,City Manager
christine Lanners,Assistantcity Attomey, city Attorney,s officer
PaulDyer, Director,ParkandRecreationDepartment
DanielHuerta,ExecutiveGeneralManagerof Fair Park,ParkandRecreationDepartment
Mark Jarrell,seniorParkManager,park andRecreationDepartment