Commonwealth of Kentucky, Kentucky Heritage Land Conservation Fund Board v. East Kentucky Power Cooperative, Inc.

RENDERED: APRIL 22, 2022; 10:00 A.M.
TO BE PUBLISHED

Commonwealth of Kentucky
Court of Appeals

NO. 2020-CA-0882-MR

COMMONWEALTH OF KENTUCKY,
KENTUCKY HERITAGE LAND
CONSERVATION FUND BOARD APPELLANT

APPEAL FROM BULLITT CIRCUIT COURT
v. HONORABLE RODNEY BURRESS, JUDGE
ACTION NO. 19-CI-00762

LOUISVILLE GAS AND ELECTRIC
COMPANY; ISAAC W. BERNHEIM
FOUNDATION; AND EAST KENTUCKY
POWER COOPERATIVE, INC. APPELLEES

OPINION
AFFIRMING

** ** ** ** **

BEFORE: ACREE, CETRULO, AND MAZE, JUDGES.

MAZE, JUDGE: We commence our discussion of this interlocutory appeal by

emphasizing what this case is not about. It is not about whether Louisville Gas and

Electric Company (LG&E) has the right to take a portion of property owned by the
Isaac W. Bernheim Foundation (Bernheim) for the construction of an underground

natural gas pipeline. Rather, our review is limited solely to consideration of

whether the doctrine of sovereign immunity precludes the Bullitt Circuit Court

from proceeding to determine whether LG&E is entitled to exercise the right of

eminent domain with respect to property upon which the Commonwealth of

Kentucky owns a conservation easement. The appellant, Kentucky Heritage Land

Conservation Fund Board (Board) insists that the trial court erred in refusing to

dismiss the underlying condemnation action because: (1) the Board is immune

from suit under the doctrine of sovereign immunity; (2) the General Assembly has

not waived sovereign immunity by express language or overwhelming implication;

(3) LG&E otherwise lacks the authority to condemn public property by statute; and

(4) the doctrine of prior public use prohibits the condemnation of the property at

issue. Having considered oral argument, the briefs of the parties, and the record,

we affirm the decision of the Bullitt Circuit Court and hold that sovereign

immunity does not bar the commencement of condemnation proceedings against

the holder of a conservation easement.

Before addressing the merits of the Board’s appeal, the Court must

address three preliminary matters. First, the Court notes that Appellee, Isaac W.

Bernheim Foundation, Inc., supports the arguments of the Board in its brief and

has otherwise asserted its own arguments that the trial court erred by denying the

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Board’s motion to dismiss. In its brief, Bernheim further requested “that the

decision of the Bullitt Circuit Court be reversed with directions to enter an Order

dismissing with prejudice the action as against Bernheim . . . .” While the Court

has considered the arguments of Bernheim, we need not address its arguments

separately in this Opinion to the extent that Bernheim seeks affirmative relief.

While Bernheim filed a motion to dismiss in the trial court below, this

appeal only concerns the denial of the Board’s motion to dismiss on the issue of

sovereign immunity. The June 12, 2020, order of Bullitt Circuit Court clearly

stated its scope:

This matter comes before the Court on Defendants’
Motions to Dismiss. This order shall address the
Kentucky Heritage Land Conservation Fund Board’s
Motion to Dismiss.

Bernheim lacks standing to assert the sovereign immunity of the Commonwealth.

Further, it is important to emphasize that there is no indication Bernheim’s own

rights were otherwise directly impacted by the June 12, 2020, order.

Second, Bernheim filed a motion to strike the appellee brief filed by

LG&E. This Court has denied the motion to strike by separately entered order.

Third, although not addressed by the parties in briefing or at oral

argument, the Court questions whether the abbreviated procedure contemplated by

the Kentucky Eminent Domain Act precludes, by implication, the availability of

motions to dismiss to test the legal sufficiency of a condemnation petition. In

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Ratliff v. Fiscal Court of Caldwell County, Kentucky, 617 S.W.2d 36, 38 (Ky.

1981), the Supreme Court of Kentucky has explained the step-by-step procedure

for condemnation proceedings under the Eminent Domain Act as follows:

A petition seeking condemnation is required to contain
those allegations necessary to show that the petitioner is
entitled to exercise the right of eminent domain. KRS[1]
416.570(1). The condemnee’s answer is “confined solely
to the question of the right of the petitioner to condemn
the property . . . .” KRS 416.600[.] The statute directs
the condemnee to raise immediately (if at all) the
issues of the right to take.

(Emphasis added.) While the Eminent Domain Act does not explicitly authorize a

condemnee to appeal a trial court’s interlocutory judgment concerning the

condemnor’s right to take, the Ratliff Court held that constitutional considerations

mandate the availability of an immediate appeal to a losing condemnee. Id.

This Court has recently stated that when a defendant raises the issue

of the condemnor’s right to take, “[t]here [is] no need for, nor right to, another

hearing” beyond the hearing provided by KRS 416.610(4). Allard v. Big Rivers

Electric Corp., 602 S.W.3d 800, 808 (Ky. App. 2020).

As cited above, the Supreme Court of Kentucky has recognized that

KRS 416.600 “directs the condemnee to raise immediately (if at all) the issues of

the right to take.” Ratliff, 617 S.W.2d at 38 (emphasis added). This Court has also

held that any exceptions to a condemnor’s right to take must be raised in the

1
Kentucky Revised Statutes.

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answer under KRS 416.600. Commonwealth, Transportation Cabinet, Dep’t of

Highways v. Wireman, 714 S.W.2d 159, 162 (Ky. App. 1986). KRS 416.610(4)

further provides that the issue of a condemnor’s right to take shall be tried on the

pleadings:

If the owner has filed answer or pleading putting in
issue the right of the petitioner to condemn the property
or use and occupation thereof sought to be condemned,
the court shall, without intervention of jury, proceed
forthwith to hear and determine whether or not the
petitioner has such right.

(Emphasis added.) Under Kentucky law, a motion to dismiss is not a pleading.

See Vincent v. City of Bowling Green, 349 S.W.2d 694, 696 (Ky. 1961); CR2 7.01.

It is the trial court’s determination of a condemnor’s right to take, based on the

pleadings, that triggers the right to take an immediate appeal. Ratliff, 617 S.W.2d

at 39.

The requirement that all issues concerning a condemnor’s right to take

be raised in the answer under KRS 416.600 is consistent with federal eminent

domain law. A motion to dismiss is not authorized in any eminent domain

proceeding under federal law. Federal Rules of Civil Procedure (FRCP)

71.1(e)(3). The Supreme Court of Kentucky has generally interpreted the

Kentucky Eminent Domain Act consistently with the federal eminent domain law.

See Foster v. Sanders, 557 S.W.2d 205, 211 (Ky. App. 1977). In federal court, a

2
Kentucky Rules of Civil Procedure.

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motion to dismiss is specifically not permitted in a condemnation proceeding

because the rule governing condemnation proceedings instructs that a defendant’s

answer “state all the defendant’s objections and defenses to the taking.” FRCP

71.1(e)(3) further specifically provides:

[a] defendant waives all objections and defenses not
stated in its answer. No other pleading or motion
asserting an additional objection or defense is
allowed.

(Emphasis added.) In Atlantic Seaboard Corporation v. Van Sterkenburg, 318

F.2d 455, 458 (4th Cir. 1963), the Court stated, “[w]e need not consider the

dubious merits of the motion for a more definite statement or of the motion to

dismiss, for they were not allowable pleadings.” The Court explained:

Whatever defenses and objections are available may be
raised by answer. The prohibition of other pleadings
clearly had, as its purpose, an early joinder of issue
and the elimination of the possibility of extended
delay through the presentation of preliminary
pleadings with resultant hearings and orders. One
pleading to raise all objections and defenses to the taking
and one hearing to dispose of them are contemplated, not
successive pleadings and successive hearings spanning a
much longer period of time. The Rule’s prohibition of
any pleading other than an answer is clear and
unequivocal. The preliminary motions tendered here
were unallowable.

Id. (emphasis added) (footnote omitted). Similarly, this Court has described the

procedures under KRS 416.540 to be “summary.” Mother of God Cemetery Ass’n,

Inc. v. Commonwealth, Transportation Cabinet, Dep’t of Highways, 759 S.W.2d

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69, 71 (Ky. App. 1988). The federal authority cited above appears to be persuasive

and consistent with the precedent of the Kentucky Supreme Court in Ratliff that

any objections to the right to take must be made immediately in the answer, if at

all.

In sum, the statutory framework for condemnation proceedings and

the caselaw interpreting those statutes clearly envision that there be an expedited

proceeding resulting in but one interlocutory appeal. We therefore hold that the

sovereign immunity defense must be raised, if at all, in the answer or other

pleading as required by KRS 416.600.

Although this procedural defect would allow us to affirm the decision

of the trial court on the basis that a motion to dismiss is not an allowable pleading

and that a single interlocutory appeal is available, we nevertheless turn to an

analysis of the Board’s sovereign immunity arguments. We commence with a

recitation of the facts.

The Kentucky General Assembly has articulated a public policy of

acquiring, maintaining, promoting, and funding the conservation of certain lands

“for use as state parks, recreation areas, state forests, nature preserves, wildlife

management areas, and wetlands.” KRS 146.555. KRS 146.555 states that it is “in

the public interest to promote and fund the conservation of such areas.” In

furtherance of this policy, the General Assembly established the Board for the

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purpose of administering the Kentucky Heritage Land Conservation Fund and to

review and approve all grants payable from the fund. KRS 146.560(1). The Fund

consists of moneys in the State Treasury received as “state appropriations, gifts,

grants, federal funds, and tax receipts.” KRS 146.570(1). The Board is further

directly authorized to allocate moneys from the Fund “to private, nonprofit land

trust organizations, state agencies, local governments, and state colleges and

universities” in accordance with the provisions of KRS 146.550 to 146.570 and

other applicable law. KRS 146.570(4)(f).

Bernheim is a nonprofit Kentucky corporation organized for the

purpose of connecting people with nature. On October 15, 2018, Bernheim

purchased 494.33 acres of land in Bullitt County, Kentucky. The 494.33-acre

parcel is known as the Simon Tract. On the same day, October 15, 2018,

Bernheim executed a conservation easement in favor of the Board in exchange for

$706,500.00 (1/2 of the purchase price).3 The conservation easement between

Bernheim and the Board states in pertinent part as follows:

3
Bernheim also received $706,500.00 (1/2 of the purchase price) from the United States Fish
and Wildlife Service (USFWS) in exchange for a separate deed restriction concerning the
conservation of the property. The interest of the United States Fish and Wildlife Service in
relation to these proceedings is described in Louisville Gas and Electric Company v. Isaac W.
Bernheim Foundation, No. 3:20-cv-688-CRS, 2021 WL 1093638, *2 (W.D. Ky. Mar. 22, 2021)
(“The authorities indicate that whatever purported interest USFWS may have in the property, as
the product of a deed restriction contained in an instrument to which USFWS is not a signatory,
it would not be superior to LG&E’s exercise of the power of eminent domain if the proposed
taking is found to be valid.”).

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 THIS DEED OF CONSERVATION EASEMENT is
entered into by and between the Isaac W. Bernheim
Foundation (hereinafter “GRANTOR”), and the
Commonwealth of Kentucky, by and through the Finance
and Administration Cabinet, for the use and benefit of the
Kentucky Heritage Land Conservation Fund Board
(hereinafter “GRANTEE”). . . .

D. Disturbance of Natural Features. Any disturbance or
alteration of the Property and its natural conditions
through the removal of vegetation, flora, fauna, soil,
rocks, or other components is prohibited unless it is
consistent with this Easement and expressly permitted in
writing by GRANTOR and GRANTEE. . . .

O. Other Structures and Improvements. Structures or
facilities shall not be erected on the Property unless
deemed necessary to provide Environmental Education
Programs or to mitigate safety concerns and unless
GRANTOR and GRANTEE first agree in writing to the
structures. . . .

Q. Rights of Way. The granting of rights of way through
the Property for the installation, transporting, or use of
lines . . . for gas . . . is strictly prohibited. . . .

(Emphasis added.)

LG&E is a public utility that provides natural gas service to the people

of the Commonwealth and Bullitt County. On July 31, 2019, LG&E filed a

condemnation action against the Board, Bernheim, and East Kentucky Power

Cooperative in Bullitt Circuit Court seeking to acquire portions of the property

subject to the conservation easement for the purpose of constructing an

underground natural gas pipeline. On November 15, 2019, the Board filed a

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motion to dismiss the action because LG&E allegedly failed to tender an offer to

purchase the Board’s interest in the subject property prior to commencing the

condemnation proceeding. It does not appear that the trial court has ruled upon

this issue. Subsequently, and pertinent to this interlocutory appeal, on March 4,

2020, the Board filed a motion to dismiss the action in its entirety on the grounds

that sovereign immunity prohibited LG&E from maintaining an action to condemn

a state-owned easement. The trial court denied the Board’s motion to dismiss in an

order entered on June 12, 2020. This interlocutory appeal followed.

The Board first argues that sovereign immunity precludes the

commencement of condemnation proceedings against property subject to a

conservation easement when the holder of the easement is the Commonwealth. As

a general rule, the denial of a motion to dismiss is not appealable. Halle v. Banner

Industries of N.E., Inc., 453 S.W.3d 179, 184 (Ky. App. 2014). However, this

Court has jurisdiction of interlocutory appeals concerning the denial of a defense

of sovereign immunity because “immunity entitles its possessor to be free ‘from

the burdens of defending the action, not merely . . . from liability.’” Breathitt

County Board of Education v. Prater, 292 S.W.3d 883, 886 (Ky. 2009) (quoting

Rowan County v. Sloas, 201 S.W.3d 469, 474 (Ky. 2006)).

The issue of whether a public entity is immune from suit is a legal

question which an appellate court reviews de novo. Sloas, 201 S.W.3d at 475. The

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scope of review of an interlocutory appeal involving sovereign immunity is limited

to the issue of immunity and nothing more. Baker v. Fields, 543 S.W.3d 575,

578 (Ky. 2018). KRS 416.620(2) also allows an immediate appeal from an

interlocutory order adjudicating the issue of a condemnor’s right to take. Ratliff,

617 S.W.2d at 38. However, the order at issue in this appeal solely concerns the

denial of sovereign immunity as a defense. As previously emphasized, the trial

court has yet to address LG&E’s ultimate right to take. Our review is thus

confined to issue of whether sovereign immunity prevents the commencement of

condemnation proceedings.

Sovereign immunity “is an inherent attribute of a sovereign state that

precludes the maintaining of any suit against the state unless the state has given its

consent or otherwise waived its immunity.” Yanero v. Davis, 65 S.W.3d 510, 517

(Ky. 2001). A “suit” means “[a]ny proceeding by a party or parties against another

in a court of law[.]” Suit, BLACK’S LAW DICTIONARY (11th ed. 2019). The

concept of sovereign immunity arises from the common law rather than any

constitutional considerations. Yanero, 65 S.W.3d at 523. However, Section 231 of

the Kentucky Constitution empowers the General Assembly to “direct in what

manner and in what courts suits may be brought against the Commonwealth.”

Section 231 of the Kentucky Constitution is not the source of sovereign immunity.

Yanero, 65 S.W.3d at 524. Rather, Section 231 is a provision “that permit[s] the

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General Assembly to waive the Commonwealth’s inherent immunity . . . .” Id.

While the defense of sovereign immunity typically applies to claims against the

Commonwealth for monetary damages sounding in tort or contract, the former

Court of Appeals has held that sovereign immunity also applies to claims against

real property held by the Commonwealth. Kentucky State Park Commission v.

Wilder, 256 Ky. 313, 317, 76 S.W.2d 4, 6 (1934).

In Wilder, a corporation conveyed 600 acres of land, composed of five

different tracts, to the Commonwealth for the use and benefit of the Kentucky State

Park Commission. The deed contained a restriction, which stated the property

“shall be preserved in its existing state, and that the property herein conveyed shall

be used by second party as an exclusively State owned and State controlled park,

and for State Park purposes exclusively.” Id. at 314, 76 S.W.2d at 4.

Subsequently, several private individuals (plaintiffs) filed suit against the

Commission alleging that they were the joint owners of an undivided 49/50 interest

in a 200-acre tract encompassed within the property conveyed by the corporation

to the Commission. The plaintiffs requested that the property be subjected to a

judicial sale with the proceeds divided among the parties according to their

respective interests. The Commission argued that sovereign immunity precluded

the relief requested by the plaintiffs.

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 The Court held that when the Commonwealth holds title to real

property that is used for a public purpose, the Commonwealth is the real party in

interest in any suit affecting its rights and interest in the property. Wilder, 256 Ky.

at 315, 76 S.W.2d at 5. In other words, a claim against real property held by the

Commonwealth is a claim against the Commonwealth itself, rather than a claim

against the governmental entity that acquired the real property as an agent of the

Commonwealth. Id. The Court held that, in the absence of a waiver of sovereign

immunity, the plaintiffs’ suit to force a judicial sale of state property could not

proceed. Id. However, the Court also noted that the plaintiffs were permitted to

institute an action against the Commonwealth “for damages growing out of the

taking, injuring, or destroying of private property for public purposes.” Id. at 317,

76 S.W.2d at 6.

In the present case, the Board used state funds to acquire the

conservation easement pursuant to KRS Chapter 146. The conservation easement

was granted in the name of the “Commonwealth of Kentucky, by and through the

Finance and Administration Cabinet, for the use and benefit of the Kentucky

Heritage Land Conservation” as required by KRS 56.030(1). KRS 56.030(1) states

in pertinent part that “the Commonwealth shall be named as the grantee of any

land given or devised to the state, or partly or wholly paid for out of state funds,

and of any land or interest in land conveyed to it or for its use or for the use of any

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of its agencies or officers.” Under Wilder, we conclude that sovereign immunity

applies to the present case because the proceedings impact the property rights of

the Commonwealth itself.

Furthermore, the analysis of the former Court of Appeals in Wilder

explained that cases concerning state property may proceed even when the

Commonwealth itself is not a party to an action concerning property to which it

held title:

It will therefore be seen that not only was the conveyance
made directly to the commonwealth, but that under the
statutes hereinbefore quoted and referred to, the title to
the land in controversy vested in the commonwealth to be
held and used for public purposes. . . . Although the park
commission is nominally designated as a party defendant
and the state is not made a party to the action, it is in fact
the real party in interest and against which relief is
sought. This is, therefore, to all intents, purposes, and
effect a suit against the commonwealth, and this being
true, it only remains to be determined whether an action
of this character may be maintained against the
commonwealth.

256 Ky. at 315, 76 S.W.2d at 5 (emphasis added).

In addition, the Supreme Court made clear in Commonwealth v.

Kentucky Retirement Systems, 396 S.W.3d 833, 840-41 (Ky. 2013), that it is not

necessary for the Attorney General to protect the Commonwealth’s interest in the

litigation where those interests are otherwise protected:

Retirement Systems candidly admits that it does
not wish to be “left to defend the statute alone,” and that

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 since a constitutional question is involved, the Attorney
General is better situated to defend the action. KRS
418.075 requires that the Attorney General be served
with a copy of the petition if the validity or
constitutionality of a statute is at issue, as it is here. The
Attorney General in turn has certain statutory duties
which include notifying the Legislative Research
Commission of the claim and deciding whether he will be
“a party to that action.” KRS 418.075(1), (3).

Understandably, if the petition is to be served on
the Attorney General, it might be perceived that he, as
the chief legal officer of the state, be named as the
“Commonwealth.” But that is not necessary because the
interests of the Commonwealth are already represented
by Retirement Systems, which is a necessary party. Cf.
Lassiter v. American Exp. Travel Related Services Co.,
Inc., 308 S.W.3d 714, 718 (Ky. 2010) (allowing naming
of Department of Treasury to be “functional equivalent”
of naming state treasurer in official capacity).

...

In either instance, the interests of the state will be
adequately represented. Here, the Attorney General has
filed a notice with the court that he “declines to
participate in the defense of the statute.” Since the state
was already a party to this action through Retirement
Systems, and there are no other reasons for the Attorney
General to be involved, that choice is his to make under
KRS 418.075.

Here, although the Commonwealth was not named as a party in the condemnation

suit, the complaint was served upon the Attorney General. Because this suit does

not challenge the constitutionality of a statute, the dictates of KRS 418.075 are not

implicated. Under these circumstances, there was no requirement for the Attorney

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General to formally decline to participate in the action. Thus, the Board’s right to

assert the defense of sovereign immunity is clearly established in our jurisprudence

and it was competent to defend the Commonwealth’s interests in this case.

Once the propriety of a sovereign immunity defense has been

established, the question becomes whether the Legislature has waived that

immunity “by the most express language or by such overwhelming implications

from the text as [will] leave no room for any other reasonable construction.”

Withers v. University of Kentucky, 939 S.W.2d 340, 346 (Ky. 1997) (quoting

Edelman v. Jordan, 415 U.S. 651, 673, 94 S. Ct. 1347, 1361, 39 L. Ed. 2d 662, 678

(1974)). The Board concedes that LG&E is a public utility with statutory eminent

domain powers under KRS 278.502 and that a conservation easement is generally

subject to condemnation pursuant to KRS 382.850(2). Nevertheless, the Board

seeks to avoid the import of KRS 382.850(2) by arguing that the statute does not

waive sovereign immunity by express language or overwhelming implication. We

disagree.

The issue of whether KRS 382.850(2) constitutes a waiver of

sovereign immunity is one of first impression. The interpretation of a statute

begins with the text of the statute itself. Garrard Co. v. Middleton, 520 S.W.3d

746, 750 (Ky. 2017). The Supreme Court of Kentucky has instructed that “[a]

statute should be construed, if possible, so as to effectuate the plain meaning and

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unambiguous intent expressed in the law.” Bob Hook Chevrolet Isuzu, Inc. v.

Commonwealth of Kentucky, Transportation Cabinet, 983 S.W.2d 488, 492 (Ky.

1998) (citations omitted). The plain meaning of a statute is determined by

reference to statutory definitions if statutory definitions are provided. Utility

Management Group, LLC v. Pike County Fiscal Court, 531 S.W.3d 3, 8 (Ky.

2017). For terms that are undefined by statute, the plain meaning is determined by

reference to the common usage of the language used by the Legislature. Caesars

Riverboat Casino, LLC v. Beach, 336 S.W.3d 51, 58 (Ky. 2011). A statute “must

also be viewed in context rather than in a vacuum; other relevant parts of the

legislative act must be considered in determining the legislative intent.” Jefferson

County Board of Education v. Fell, 391 S.W.3d 713, 719 (Ky. 2012).

KRS 382.850(2) defines the relationship between conservation easements and

eminent domain as follows:

A conservation easement shall not operate to limit,
preclude, delete or require waivers for the conduct of
coal mining operations, including the transportation of
coal, upon any part or all of adjacent or surrounding
properties; and shall not operate to impair or restrict
any right or power of eminent domain created by
statute, and all such rights and powers shall be
exercisable as if the conservation easement did not
exist.

(Emphases added.) A conservation easement is defined in KRS 382.800(1) as

follows:

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 “Conservation easement” means a nonpossessory interest
of a holder in real property imposing limitations or
affirmative obligations, the purposes of which include
retaining or protecting natural, scenic, or open-space
values of real property, assuring its availability for
agricultural, forest, recreational, or open-space use,
protecting natural resources, maintaining or enhancing air
or water quality, or preserving the historical,
architectural, archaeological, or cultural aspects of real
property.

KRS 382.800(2)(a) recognizes that the holder of a conservation easement may be a

“governmental body empowered to hold an interest in real property under the laws

of this state or the United States[.]”

Under KRS 382.850(2), a conservation easement “shall not operate to

impair or restrict any right or power of eminent domain created by statute, and all

such rights and powers shall be exercisable as if the conservation easement did not

exist.” If it is assumed that the conservation easement did not exist, then the issue

of the Commonwealth’s ownership interest in the conservation easement is

removed as an obstacle to the pursuit of condemnation proceedings by a party with

a statutory right of eminent domain. We reiterate that the General Assembly was

aware that a governmental entity could be the holder of a conservation easement

under KRS 382.850(2). By employing the legal fiction that a conservation

easement does not exist upon the exercise of a statutory power of eminent domain,

the General Assembly expressed its intention that a conservation easement held by

a governmental entity is subject to the exercise of any statutory power of eminent

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domain. Therefore, we hold that KRS 382.850(2) constitutes a waiver by

overwhelming implication, if not express language, of sovereign immunity where a

governmental interest in a conservation easement is asserted as a defense to

condemnation proceedings initiated by a party with a statutory right of eminent

domain.

This Court has reviewed the cases cited by the Board regarding the

waiver of sovereign immunity by express language or implication.4 These cases do

not impact our analysis of KRS 382.850(2) because each cited case involves

distinguishable controlling statutes and factual situations where a private individual

or corporation sought monetary recompense for an alleged harm committed by a

government entity. In the present case, LG&E is not seeking recompense for a

harm. Instead, LG&E has attempted to exercise its statutory right of eminent

domain pursuant to KRS 278.502 as permitted by KRS 382.850(2).

The Board argues that there is a reasonable alternative interpretation

of KRS 382.850(2) that precludes a finding of waiver of sovereign immunity. The

Board argues that the import of KRS 382.850(2) is simply “to provide that the

existence of a conservation easement on real property shall not alone serve as a

defense to condemnation.” In other words, according to the Board, KRS

4
Ruplinger v. Louisville/Jefferson County Metro Government, 607 S.W.3d 583 (Ky. 2020);
Bryant v. Louisville Metro Housing Authority, 568 S.W.3d 839 (Ky. 2019); Department of
Corrections v. Furr, 23 S.W.3d 615 (Ky. 2000); Jewish Hosp. Healthcare Services, Inc. v.
Louisville/Jefferson County Metro Government, 270 S.W.3d 904 (Ky. App. 2008).

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382.850(2) merely preserves the right of eminent domain and subjects conservation

easements to the right of eminent domain, but does not speak to the immunity of a

governmental holder of a conservation easement. This Court cannot accept the

Board’s alternative interpretation of KRS 382.850(2) because the Board’s

interpretation does not give full effect to the provision in KRS 382.850(2) that any

statutory right of eminent domain “shall be exercisable as if the conservation

easement did not exist.”

Under the principles of statutory interpretation, no subsection of a law

should be interpreted so as to render it meaningless. Brooks v. Meyers, 279

S.W.2d 764, 766 (Ky. 1955). In KRS 382.850(2), the use of the phrase, “all such

rights and powers shall be exercisable as if the conservation easement did not

exist[,]” appears to be a unique modification of the Uniform Conservation

Easement Act (UCEA). The text of the UCEA does not address the issue of

whether a conservation easement can be condemned through eminent domain.

However, the preface to the 2007 version provides that “the Act neither limits nor

enlarges the power of eminent domain[,]” instead leaving “the scope of that

power” to “the adopting state’s eminent domain code and related statutes.” See

Nat’l Conf. of Comm’rs on Unif. State L., Prefatory Note at 4 to Uniform

Conservation Easement Act (1981) (amended 2007). Unlike other jurisdictions,

the Kentucky General Assembly did not adopt any language from the preface to

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the UCEA concerning the enlargement of eminent domain. Compare, e.g., Ariz.

Rev. Stat. Ann. § 33-272(A) (“This article neither limits nor enlarges the power or

purposes of eminent domain, zoning, subdivision regulations or any right of

condemnation under the laws of this state.”).

This Court cannot endorse an interpretation that simply ignores a

portion of the statutory text. This Court does not consider the phrase, “all such

rights and powers shall be exercisable as if the conservation easement did not

exist,” to be mere surplusage because the General Assembly specifically added

these words to the statute contrary to the language set out in the preface and text of

the Uniform Conservation Easement Act and comparable statutes enacted by other

jurisdictions. The Legislature is presumed to be aware of existing laws when

enacting a new statute. Pearce v. University of Louisville, by and through its Bd.

of Trustees, 448 S.W.3d 746, 760 (Ky. 2014).

The Board next argues that LG&E lacks a statutory right to eminent

domain in the context of KRS 382.850(2). While the Board concedes that LG&E

possesses a statutory right of eminent domain under KRS 278.502 over private

property, the Board argues that LG&E lacks a statutory right of eminent domain

over property owned by the Commonwealth. The Board further argues that KRS

382.850(2) does not enlarge the power of eminent domain. Consequently, the

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Board argues that LG&E cannot condemn public property under KRS 382.850(2)

because LG&E cannot condemn public property under KRS 278.502.

The Board’s interpretation of KRS 382.850(2) attempts to divorce the

phrase, “any right or power of eminent domain created by statute” from the context

of the rest of the subsection, which provides that a conservation easement does not

operate to impair any statutory power of eminent domain and that all such powers

are exercisable as if the conservation easement did not exist. In Kelly v.

Thompson, 983 S.W.2d 457, 458 (Ky. 1998), as modified on denial of reh’g (Jan.

21, 1999), the Supreme Court of Kentucky stated:

It is within the authority of the General Assembly to
define the limits of the right of eminent domain and to
establish the specific terms under which the condemning
authority may exercise such power. As such, it would
necessarily include defining the property interest taken
and retained in an eminent domain action.

(Emphasis added.) The General Assembly has created a statutory power of

eminent domain through the enactment of KRS 278.502.

This Court has interpreted KRS 278.502 as an expression of the

Legislature’s intent “to delegate the state’s power of eminent domain to those

pipeline companies that are, or will be, regulated by the PSC [Public Service

Commission].” Bluegrass Pipeline Co., LLC v. Kentuckians United to Restrain

Eminent Domain, Inc., 478 S.W.3d 386, 392 (Ky. App. 2015). This Court has

further stated that KRS 278.502 is “unambiguous” and expressly grants the

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“authority to exercise the power of eminent domain.” Diebold v. Louisville Gas

and Electric Co., No. 2019-CA-000393-MR, 2020 WL 113936, at *2 (Ky. App.

Jan. 10, 2020). On the basis of the foregoing caselaw, we conclude that LG&E

possesses a statutory power of eminent domain under KRS 278.502. The

possession of a statutory power of eminent domain under KRS 278.502 further

constitutes “any right or power of eminent domain created by statute,” within the

meaning of KRS 382.850(2).

This Court acknowledges that the exercise of LG&E’s power of

eminent domain may ordinarily be limited to private property under KRS

416.540(1). Indeed, the general rule is that a condemnor to whom the power of

eminent domain has been delegated may not condemn public property unless

authority is expressly or impliedly granted by statute. 29A C.J.S. Eminent Domain

§ 61 (2022). While LG&E may not have the general power to condemn public

property under KRS 278.502 and KRS 416.540(1), KRS 382.850(2) expresses the

Legislature’s intention that a conservation easement cannot be used to impede the

exercise of any statutory power of eminent domain that the Legislature has

otherwise conferred by statute. If the existence of the conservation easement is

disregarded, as KRS 382.850(2) instructs, then LG&E would undoubtedly have the

power to condemn the property at issue.

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 Moreover, KRS 382.850(2) does not enlarge the power of eminent

domain. Rather, KRS 382.850(2) limits the effect of the rights afforded to the

holder of a conservation easement when any power of eminent domain is

exercised. The Board cites KRS 76.110(1) as an example of a statute through

which the General Assembly explicitly granted metropolitan sewer districts the

right to acquire land by eminent domain whether the land is “owned or held for

public use by corporations, associations, or other persons having the power of

eminent domain, or otherwise held or used for public purposes.” KRS 278.502

admittedly does not explicitly grant the operator of a natural gas pipeline, in public

service, the right to take property held or used for a public purpose. However, the

use of the phrase, “all such rights and powers shall be exercisable as if the

conservation easement did not exist[,]” which the General Assembly inserted into

KRS 382.850(2), obviates the necessity of analyzing the differences between the

statutes creating the right of eminent domain because, in the context of a

conservation easement, any statutory right of eminent domain shall be exercisable

as if the conservation easement did not exist.

Similarly, the fact that KRS 416.140 specifically allows public

utilities to place distribution lines on or under a public roadway or watercourse

without the exercise of eminent domain, while the Eminent Domain Act does not

explicitly bestow such rights for the placement of distribution lines on a

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conservation easement, does not negate the plain import of KRS 382.850(2), which

again provides that any statutory right of eminent shall be exercisable as if the

conservation easement did not exist. If the General Assembly had intended that

conservation easements should only yield to the exercise of a statutory right of

eminent domain when the authorizing statute explicitly authorizes the

condemnation of public property, then the language intentionally inserted into the

enactment of KRS 382.850(2) would be entirely superfluous.

The Board finally argues that LG&E lacks the power to condemn

property owned by the Commonwealth under the doctrine of prior public use.

Again, we disagree.

This Court has recognized the general rule that “land devoted to one

public use cannot be taken for another public use in the absence of express

legislative authority for the taking.” Jefferson County by and through Hollenbach

v. South Central Bell Tel. Co., 555 S.W.2d 629, 632 (Ky. App. 1977). In addition,

the former Court of Appeals explained the basis of the doctrine as follows:

We think that it follows, as a necessary consequence of
the power to condemn, that this power may be exercised,
not only upon private property, but upon property
devoted to a public use, especially when the new use
does not destroy the previous use, and when both of the
uses may be enjoyed at the same time without the
unreasonable impairment of either. . . . The authority to
take property seized and appropriated to another public
use may be implied from the language of the statute, but
this can only be so where the words employed and the

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 evident intent of the statute make it clearly the duty of the
courts to give force to the implication. The intent of the
Legislature to destroy the rights granted by former
statutes must unequivocally appear. A grant of authority
to appropriate land seized under former statutes, or
previously seized for public use, cannot ordinarily be
inferred from a mere general grant. The general rule is
that, if the two uses are not inconsistent, both may stand
together without material impairment of the first.
Authority for the second use may be implied from a
general grant; but, if they cannot coexist without material
impairment of the first, authority to take from the second
cannot be implied from a mere general grant of authority
to condemn. . . .

. . . When the state grants to a public or private
corporation the right to exercise a part of its sovereign
power to take private property for a public use, it always
does so with the implied understanding that future
control over the property so taken is not surrendered by
the state. It reserves for the public good the power to
take again, and as many times as may be necessary, so
much of the property as is needful for the use of the
public, although this may in some cases go to the extent
of destroying the first use.

Louisville & N.R. Co. v. City of Louisville, 131 Ky. 108, 115-16, 114 S.W. 743,

746 (1908). The Court further stated “[w]hen the new public use will destroy the

previous use to which the property was devoted, then the authorities before cited

agree that the power must be conferred in express terms and strictly followed . . . .”

Id. at 116, 114 S.W. at 746.

The doctrine of prior public use “has particular application when one

condemning authority seeks property held by another condemning authority and

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neither possesses a superior power of condemnation by statute or court decision.”

Housing Authority of City of Fort Lauderdale v. Florida, Dep’t of Transp., 385

So.2d 690, 691 (Fla. Dist. Ct. App. 4th 1980) (citations omitted). In other words,

the doctrine of prior public use operates to resolve competing claims to property

under a right of eminent domain. See generally Kipling v. City of White Plains, 80

S.W.3d 776, 784-85 (Ky. App. 2001); Crain v. Hardin Co. Water Dist. No. 2, No.

2015-CA-000499-MR, 2016 WL 3453206 (Ky. App. Jun. 17, 2016).

We thus conclude that the plain language of KRS 382.850(2)

authorizes a statutory right of eminent domain to prevail over a conservation

easement because a conservation easement is assumed not to exist upon the

exercise of a statutory right of eminent domain. If it is assumed that the Board’s

conservation easement does not exist, then there is no prior public use to impede

the exercise of LG&E’s right of eminent domain.

Accordingly, the order of the Bullitt Circuit Court is affirmed.

ALL CONCUR.

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BRIEFS FOR APPELLANT: BRIEF AND ORAL ARGUMENT
FOR APPELLEE LOUISVILLE GAS
Timothy J. Mayer AND ELECTRIC COMPANY:
Kathleen Saunier
Frankfort, Kentucky Monica H. Braun
Steven B. Loy
ORAL ARGUMENT FOR Mary Ellen Wimberly
APPELLANT: Lexington, Kentucky

Timothy J. Mayer
Frankfort, Kentucky BRIEF FOR APPELLEE ISAAC W.
BERNHEIM FOUNDATION:

Tom FitzGerald
Frankfort, Kentucky

Randal A. Strobo
Clay A. Barkley
Louisville, Kentucky

ORAL ARGUMENT FOR
APPELLEE ISAAC W. BERNHEIM
FOUNDATION:

Tom FitzGerald
Frankfort, Kentucky

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