If a West Virginia farmer signed a conservation easement that bans utility lines on his land, can a fiber-optic line still be built across the property to serve other residents?
Plain-English summary
Hardy County had a problem familiar to many rural West Virginia counties. The USDA had funded a fiber-optic line to bring high-speed internet to more than thirty residents and the WVU farm in the Wardensville area, and the only practical route for the line ran across Mr. Joshua Frye's farm. Mr. Frye's farm was already encumbered by a conservation easement signed with the Hardy County Farmland Protection Board, the West Virginia Agricultural Land Protection Authority, the Cacapon and Lost Rivers Land Trust, and the USDA's Natural Resources Conservation Service. That easement expressly barred granting any utility-related easement, including for "cellular telephone and other communication towers," for "underground or above-ground utility systems."
The local farmland board, the rural development authority, and Mr. Frye himself supported the new fiber-optic right-of-way. The state Land Protection Authority and NRCS thought the conservation easement blocked it. Prosecutor See asked the AG who was right.
The AG declined to issue a yes-or-no answer because that requires interpreting the specific deed of easement, which is a court's job. But the opinion identified three statutory pressure points that could allow the right-of-way to go forward despite the easement's literal text:
- Judicial modification under § 20-12-5(b). Although the Conservation and Preservation Easements Act says easements "shall be liberally construed in favor of the grants," the same section preserves a court's power 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." This codifies the long-running rule from Cole v. Seamonds (1920) that negative restrictive easements are enforced "provided the enforcement of such restrictions will not violate any principle of public policy."
- Material-impairment carve-out under § 20-12-8. The Act expressly preserves the fee owner's right to grant further interests in the property if the new grant "does not materially impair the prior conservation or preservation easement." Whether a specific underground fiber-optic line "materially impairs" the conservation easement is a fact question.
- Express transmission/telecommunications carve-out under § 8A-12-16(d). For easements created under the Voluntary Farmland Protection Act (which is one of the two statutes Mr. Frye's easement was created under), § 8A-12-16(d) provides that the easement "may not . . . prevent any existing or future use consistent with state law with respect to transmission and telecommunications facilities' rights-of-way, easements and licenses." This is the most direct potential answer.
The AG was clear that he could not decide on the existing record whether any of these provisions actually permitted the fiber-optic line on Mr. Frye's land, because that requires interpreting the deed and weighing the factual record. He flagged the issues for the prosecutor and effectively pointed the parties toward judicial action.
Currency note
This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Common questions
Q: Can a conservation easement totally lock land away from any future use?
A: According to this opinion, no. The AG identified at least three statutory exceptions that limit how absolute a conservation easement can be in West Virginia: judicial modification when public policy demands it, the fee owner's right to grant non-impairing further interests, and the specific transmission and telecommunications carve-out for farmland-protection easements.
Q: What is a "negative restrictive easement"?
A: It is an easement that limits or prohibits certain uses of land, rather than granting an affirmative right of access or use. Conservation easements are negative restrictive easements: the grantee (the conservation organization or government body) gets the right to enforce the limitations, but does not get a right to physically use or cross the land.
Q: Who decides whether a fiber-optic right-of-way "materially impairs" the conservation easement?
A: A court interpreting the specific deed and the surrounding facts. The AG explicitly said this question "can be answered definitively only by a court interpreting the document."
Q: What is the difference between W. Va. Code § 20-12 and § 8A-12?
A: § 20-12 is the Conservation and Preservation Easements Act, the broader West Virginia statute that governs conservation easements in general (passed in 1995). § 8A-12 is the Voluntary Farmland Protection Act, which creates a more specific framework for farmland-protection programs administered by county farmland protection boards. Mr. Frye's easement was created under both. The transmission/telecommunications carve-out in § 8A-12-16(d) is specific to farmland-protection easements.
Q: Does the public-utility carve-out apply to electricity, water, sewer, or only to telecom?
A: The text of § 8A-12-16(d) refers to "transmission and telecommunications facilities," which most naturally covers electric transmission lines and telecommunications infrastructure (including fiber). It does not on its face cover water or sewer. The AG did not need to reach that question because the dispute was about a fiber-optic line.
Background and statutory framework
A conservation easement is a voluntary, recorded restriction on land use that an owner places on his or her own property, typically in favor of a government body or qualified land trust. In exchange, the owner often receives tax benefits and the public gains long-term protection of agricultural, ecological, or scenic values. Because the easement runs with the land, it binds future owners.
West Virginia has two overlapping statutory regimes. The Conservation and Preservation Easements Act, W. Va. Code § 20-12-1 et seq., is the general statute. It directs that easements be "liberally construed in favor of the grants" (§ 20-12-5(b)) but expressly preserves both judicial modification authority and the fee owner's right to make further grants that do not materially impair the original easement (§ 20-12-8). The Voluntary Farmland Protection Act, W. Va. Code § 8A-12-1 et seq., supplements that scheme for farmland-specific programs run by county farmland protection boards. Section 8A-12-16(b) of that Act broadly forbids commercial, industrial, and residential uses of protected land, but § 8A-12-16(d) carves out "transmission and telecommunications facilities' rights-of-way, easements and licenses."
The AG also drew on the older common-law principle from Cole v. Seamonds (1920) that negative restrictive easements are enforced in equity only when consistent with public policy. The 1995 conservation easement statute did not abrogate that principle; if anything, § 20-12-5(b) codifies it.
Citations and references
Statutes:
- W. Va. Code § 20-12-1 et seq. (Conservation and Preservation Easements Act)
- W. Va. Code § 20-12-5(b) (liberal construction; preserved judicial modification power)
- W. Va. Code § 20-12-8 (fee owner's preserved right to grant non-impairing interests)
- W. Va. Code § 8A-12-1 et seq. (Voluntary Farmland Protection Act)
- W. Va. Code § 8A-12-16(b) (general bar on commercial, industrial, and residential uses)
- W. Va. Code § 8A-12-16(d) (transmission and telecommunications carve-out)
Cases:
- Cole v. Seamonds, 87 W. Va. 19, 104 S.E. 747 (1920) (negative restrictive easements enforced only when consistent with public policy)
Secondary source cited in opinion:
- "Some Green for Green in West Virginia: An Overview of the West Virginia Conservation and Preservation Easements Act," 99 W. Va. L. Rev. 617 (1997)
Source
- Landing page: https://ago.wv.gov/media/18026/download?inline
- Original PDF: https://ago.wv.gov/media/18026/download?inline
Original opinion text
State of West Virginia
Office of the Attorney General
Patrick Morrisey, Attorney General
(304) 558-2021 / Fax (304) 558-0410
May 30, 2014
The Honorable Lucas J. See
Prosecuting Attorney
Hardy County Prosecuting Attorney's Office
204 Washington St., Room 104
Moorefield, WV 26836
Dear Prosecutor See:
You have asked for an Opinion of the Attorney General pertaining to a conservation easement created under West Virginia Code § 20-12-1 et seq. and § 8A-12-1 et seq. This Opinion is being issued pursuant to West Virginia Code § 5-3-2, which provides that the Attorney General "may consult with and advise the several prosecuting attorneys in matters relating to the official duties of their office." To the extent this Opinion relies on facts, it is based solely on the factual assertions set forth in your May 8, 2014, correspondence with the Office of the Attorney General.
In your correspondence, you state that there are concerns in Hardy County regarding a proposed new fiber optic line for high-speed internet service funded by the United States Department of Agriculture ("USDA"). The planned route of the fiber optic line, which is intended to serve more than thirty residents as well as the West Virginia University farm located in the Wardensville area, is through the property of Mr. Joshua Frye. Efforts to secure an alternative route of construction for the fiber optic line appear to have been exhausted.
You also explain that Mr. Frye previously entered into a conservation easement with the Hardy County Farmland Protection Board, the West Virginia Agricultural Land Protection Authority, and the Cacapon and Lost Rivers Land Trust, Inc (hereinafter the "Grantees"), and the United States, acting by and through the Natural Resources Conservation Service ("NRCS") of the USDA. Mr. Frye's conservation easement restricts the use of his farmland in a number of ways. Relevant here, the deed of conservation easement expressly prohibits Mr. Frye from granting an easement "for the purpose of construction and installation of underground or above-ground utility systems, including, but not limited to, water, sewer, power, fuel, sewerage pumping stations, and cellular telephone and other communication towers."
According to your letter, there is support for and opposition to the proposed fiber optic line. On the one hand, Mr. Frye, the Hardy County Farmland Protection Board, and the Hardy County Rural Development Authority support the approval of a right-of-way easement to allow for the completion of the proposed fiber optic line. On the other hand, you assert that the West Virginia Agricultural Land Protection Authority and the NRCS believe that such a right-of-way is precluded by the terms of the conservation easement.
Your letter raises the following legal question:
Does such a farmland easement take away all property rights; deny the agriculture business owners, and adjacent residents and businesses essential public services by denying needed right-of-way easements for a public fiber optic line?
For several reasons, we conclude that as a general rule, the restrictions of a conservation easement established pursuant to West Virginia Code §§ 20-12-1 and 8A-12-1 are not absolute. As explained below, we have identified at least three instances in the West Virginia Code that create exceptions to such restrictions. Whether such exceptions apply to the particular conservation easement at issue, however, is a question that we cannot answer on the facts presented and is one that, in any event, can be answered definitively only by a court interpreting the document.
First, West Virginia Code § 20-12-5(b) specifically contemplates the modification and/or termination of a conservation easement by a court in certain circumstances. That provision requires that conservation easements "be liberally construed in favor of the grants contained therein to effect the purposes of those easements and the policy and purpose of the Conservation and Preservation Easements Act." It further states, however, that the Conservation and Preservation Easements Act "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."
This exception is consistent with long-standing precedent of the West Virginia Supreme Court of Appeals regarding the enforcement of negative restrictive easements. As early as 1920, the Supreme Court of Appeals had opined that the restrictions of negative restrictive easements generally "are recognized and enforced in courts of equity . . . when it clearly appears that the intention of the parties was to limit or restrict the use of one parcel of land for the benefit of another, provided the enforcement of such restrictions will not violate any principle of public policy." Cole v. Seamonds, 87 W. Va. 19, 20, 104 S.E. 747, 748 (1920) (emphasis added). Conservation easements, which came into existence in 1995 with the passage of the Conservation and Preservation Easements Act, are essentially negative restrictive easements limiting the use of certain property for purposes of preserving the natural and agricultural integrity of the property. See also "Some Green for Green in West Virginia: An Overview of the West Virginia Conservation and Preservation Easements Act," 99 W. Va. L. Rev. 617 (1997).
Second, West Virginia Code § 20-12-8 expressly preserves a limited right for an owner of property under a conservation easement to grant rights in the property. Specifically, that provision states that the granting of a conservation easement "shall not subsequently restrict the right of the fee owner to further grant any other interest in real property to any person or entity when the grant does not materially impair the prior conservation or preservation easement."
Third, West Virginia law prohibits a conservation easement established under a farmland protection program, such as Mr. Frye's, from abrogating or preventing certain existing and future uses of the land. Pertinent here, West Virginia Code § 8A-12-16(b) generally precludes the commercial, industrial, and residential use of land that is restricted by a conservation easement, but specifically exempts certain "existing and future uses" set forth in other parts of the statute. In turn, West Virginia Code § 8A-12-16(d) provides that farmland protection conservation easement may not "prevent any existing or future use consistent with state law with respect to transmission and telecommunications facilities' rights-of-way, easements and licenses."
Should you have further questions, please do not hesitate to contact this Office.
Sincerely,
Patrick Morrisey
Attorney General
Elbert Lin
Solicitor General
Richard R. Heath, Jr.
Deputy Attorney General