West Virginia Code 20-12-5 – Judicial and related actions
(a) An action affecting a conservation or preservation easement may be brought by any of the following:
Terms Used In West Virginia Code 20-12-5
- Agency: means any branch, department or unit of the state government, however designated or constituted. See West Virginia Code 20-1-2
- Conservation easement: means a nonpossessory interest of a holder in real property, whether appurtenant or in gross, imposing limitations or affirmative obligations, the purposes of which include, but are not limited to, retaining or protecting for the public benefit the natural, scenic or open-space values of real property. See West Virginia Code 20-12-3
- Holder: means :
(1) A governmental body empowered to hold an interest in real property under the laws of this state or the United States. See West Virginia Code 20-12-3
- Person: except as otherwise defined elsewhere in this chapter, means the plural "persons" and shall include individuals, partnerships, corporations or other legal entities. See West Virginia Code 20-1-2
- Preservation easement: means a nonpossessory interest in an historical building. See West Virginia Code 20-12-3
- Real property: Land, and all immovable fixtures erected on, growing on, or affixed to the land.
- real property: include lands, tenements and hereditaments, all rights thereto and interests therein, except chattel interests. See West Virginia Code 2-2-10
- State: when applied to a part of the United States and not restricted by the context, includes the District of Columbia and the several territories, and the words "United States" also include the said district and territories. See West Virginia Code 2-2-10
- Statute: A law passed by a legislature.
- Third-party right of enforcement: means a right provided in a conservation or preservation easement, in order to enforce any of its terms, granted to a governmental body, charitable corporation, charitable association or charitable trust, which, although eligible to be a holder, is not a holder. See West Virginia Code 20-12-3
(1) An owner of an interest in the real property burdened by the easement;
(2) A holder of the easement;
(3) A person having a third-party right of enforcement; or
(4) A person, agency or entity otherwise authorized by state or federal law.
(b) This article does not affect the power of a court to modify or terminate a conservation or preservation easement in accordance with the principles of law and equity consistent with the public policy of this article as stated under section two of this article, when the easement is broadly construed to effect that policy. Notwithstanding provision of law to the contrary, conservation and preservation easements shall be liberally construed in favor of the grants contained therein to effect the purposes of those easements and the policy and purpose of this article.
(c) A holder, governmental entity or other person may not exercise the right of eminent domain or the power of condemnation to acquire a conservation easement without condemning or exercising the right of eminent domain as to the entire fee interest of the property: Provided, That any public utility regulated pursuant to the provisions of chapter twenty-four of this code or any public service enterprise subject to the provisions of the Natural Gas Act, title XV, United States Code, Section 717, et seq., or the Federal Power Act, title XV, United States Code, Section 794a, et seq., or any successor statute for the regulation of public utility or public service business, may condemn land or an interest in land subject to a conservation or preservation easement for any purpose authorized by the governing regulatory statute or by the administrative agency established under the statute. Nothing in this article may be construed to limit the lawful exercise of the right of eminent domain or the power of condemnation by any person or entity having such power, or the right of any real property owner to compensation by reason of the lawful exercise of such right of eminent domain or power of condemnation for any estate or interest in real property except a conservation or preservation easement authorized by this article.