Old will complicates eminent domain acquisition of land by military: Charleston WV Daily Mail, 11/1/06

By Michael A. Jones

A will more than 70 years old could cloud the acquisition of a 350-acre tract of land in Jackson County that officials hope to use to build a military readiness and training facility.

County officials expect to invoke eminent domain to acquire the land for $1.25 million to construct a facility that would consolidate U.S. Army Reserve centers in Huntington and Ripley, and the National Guard Armory in Spencer.

The new center would cost $16.2 million.

The Jackson County Commission is expected to hold a 3 p.m. meeting Thursday to explain the plan and answer any concerns from residents living near the Millwood property.

But some are already raising questions over whether the West Virginia Order of the Eastern Star legally possesses the land and whether the organization should receive compensation for it.

Sally D. Kneeream donated the property to Eastern Star in 1934 with the stipulation that the organization must use the land to house orphans and widows. Her will states that should Eastern Star "refuse to comply with the requirements and limitations of this will" then the land should be transferred to the Knights of Pythias.

A two-story home sits on the land near W.Va. 2, though no orphans or widows have lived on the site since the 1980s, Eastern Star officials said.

The military is hoping to begin construction on a 61,000-square-foot facility in 2010. The site is attractive because it will require little site preparation work and it's close to Interstate 77, officials said.

Neighbors living on both sides of the site have signed a petition to show their displeasure of the agreement.

That is a separate issue from whether Kneeream's heirs still have a stake in the property. One of them is state Agriculture Commissioner Gus Douglass.

He recalled that there have been several court decisions that cited the will to block previous attempts to sell the land.

"It will be interesting to see how the state uses eminent domain to get around the will," Douglass said. "The will explicitly states that if Eastern Star no longer plans to use the property for public service, then it should be returned to the heirs."

The definition of public service could be critical in deciding whether Eastern Star receives all of the $1.25 million.

John Fisher, dean of the College of Law at West Virginia University, said the eminent domain court proceedings should determine whether Eastern Star used the land as intended or if the money should be distributed to the heirs.

The resolution could become murkier if Eastern Star still has an interest in the property. The military has agreed to allow the organization to use a pavilion on the property for two events a year, which could become a pivotal issue in the decision.

Fisher said Kneeream's will would not automatically trump eminent domain, but that decision must be made in Jackson County Circuit Court.

"There are a whole bunch of legal issues that will determine who owns what here," Fisher said. "If they still have use of the property, is it sufficient to what the will intended? Someone must read the will and decide the ownership dispersal."

Harold Carpenter, chairman of the Eastern Star Trustees, said the group plans to use the money to continue services for the state's 15,000 members.

"We're not just going to take the money and spend it," Carpenter said. "That wouldn't be her wishes, and we wouldn't do that. She gave that property to help other people. I think we need to honor her request that the money be used to help people."

Kneeream directed the Board of Trustees to make improvements or additions to the property if they saw fit, "believing as I do that they will do the very best for their orders and all concerned."

But the will also says any beneficiaries will be barred from receiving the property's "benefits" should they attempt to break the contract.

"It is expressly hereby stated and understood that in no event my said farm is not to be sold or traded, or the old home to be rented for a tenant house," Kneeream wrote.

Jackson County Commission President Don Stephens said the Eastern Star and military officials came to the commission with the proposal about three weeks ago. He was unsure how the will could effect the legal procedures, but said he has been assured by the county's lawyers that eminent domain can be used.

"We're basically a facilitator on this issue," Stephens said. "Eminent domain was just to clear the deeds up as I understood it."

The commission will decide whether to acquire the land through eminent domain some time after Thursday's meeting with the residents and military officials.

Charleston WV Daily Mail: http://www.dailymail.com