Observatory sues Cog Railway

The Mount Washington Observatory has filed suit against the Cog Railway over an agreement defining rights and obligations on the summit.

LANCASTER — The Mount Washington Observatory has sued the Cog Railway, alleging that the world’s first mountain-climbing railroad has breached a financial-support agreement and also harassed the Observatory with “false claims of land ownership or other supposed restrictive covenants.”

The lawsuit was recorded in the Coos County Superior Court on Monday, exactly two months from the 150th anniversary of the Cog’s first passenger trip to the top of the tallest peak in the Northeast.

Cog owner Wayne Presby was not immediately available to comment on the lawsuit. He has, however, previously spoken about the underlying disagreement between the Cog, the Observatory and the Mount Washington Auto Road. The rift goes back to a 2009 agreement to fund the renovation of the Observatory’s museum at the summit.

The museum is in the Sherman Adams Building in the 60-acre Mount Washington State Park.

Beginning in 2010 and in exchange for its customers not having to pay extra to enter the Observatory museum, which in 2014 reopened as Extreme Mount Washington, the Cog said it would give the Observatory $1 for each passenger while the Auto Road agreed to give $1 for each adult.

The original agreement was in place for five years, but because the Cog did not exercise its termination rights, the agreement has renewed automatically for three additional five-year periods, or until 2024, the lawsuit said.

Although the Cog made payments to the Observatory as recently as 2016, it did not do so for 2017 or 2018, when, according to the lawsuit, the railway carried more than 100,000 passengers. The lawsuit added that the Cog is expected to have that many passengers in each coming year of the agreement.

The lawsuit asks the court to issue an order declaring the Cog’s obligation to make payments under the so-called “Museum Agreement” through the 2023 tourist season; attorney’s fees; and damages for “breaches of contract and the covenant of good faith and fair dealing.”

The lawsuit also asks the court to uphold the accuracy of a property-rights report that was compiled last year by the Attorney General’s office at the request of the Mount Washington Commission and also to permanently enjoin the Cog “from further interfering with the Observatory’s business by misrepresenting the rights and responsibilities” in the report.

The Commission was attempting to resolve who owned what on the summit after Presby asserted that an 1894 agreement gave the Cog certain rights there, some of which were being “violated” by the Observatory and also the Auto Road.

Presby claimed that the 1894 agreement gave the railway the exclusive right to provide food and lodging to overnight guests and that the Observatory was violating it by bringing visitors up for “EduTrips.”

That action by the Observatory, Presby has said previously, rendered the Museum Agreement moot.

The Observatory did not exist in 1894, its lawsuit against the Cog says, and thus is not a party to the 1894 agreement.

The Cog in 2016 proposed building a 35-room luxury hotel to be known as Skyline Lodge that would straddle the tracks at about a thousand feet below the summit. The hotel concept was presented to the Coos County Planning Board but an official site plan application was never filed.

The hotel drew criticism from a half dozen environmental groups which expressed concern about its impact on the fragile alpine zone on Mount Washington.

More recently, the Cog in May filed a site plan to rebuild its tracks and platform at the summit, to extend past and directly behind the Mount Washington Auto Road’s Stage Office.

At the same meeting, Planning Board Chairman John Scarinza chided Presby for building three trackside warming sheds last fall at about 4,000 feet without first filing a site-plan application.

Scarinza acknowledged that Presby didn’t believe he needed to file the application and gave Presby until the planning board’s next meeting to either file one or to prepare a memo explaining why it wasn’t necessary.