Albert Stewart in front of the Stewart family homestead. The original part of the home was a two-story, four-room structure made of squared poplar logs. The logs were later hidden by the addition of siding, and additions were also built onto the house later. This house is one of the oldest and most historic in Knott County, Kentucky. It was completed "in the year of the surrender" (1865). Jasper Byrd Stewart and Nancy Mullins raised their children here, as did Jasper's son William Stewart who inherited the estate consisting of several hundred acres of forest and farmland. (Photo and information provided by James A. Stamper.)

Lexington Herald

Monday, May. 06, 2002

Consol backs off demand on UK land

COAL FIRM DIDN'T FOLLOW THROUGH ON BROAD-FORM THREAT

By Lee Mueller

EASTERN KENTUCKY BUREAU

HINDMAN - Kentucky's notorious broad-form mineral deed, once used by strip miners to bulldoze Eastern Kentucky hills despite protests from surface owners, still has a kick.

Just ask University of Kentucky officials.

A large Pennsylvania-based coal company last week backed away from an implied threat to "broad-form" UK in order to dig an air shaft on a Knott County farm donated to the university in 1983 by Hindman poet Albert Stewart.

Many assumed the old mineral deeds, obtained by speculators from mountain farmers at the turn of the century for about 10 cents an acre, were neutralized in 1988 by a constitutional amendment that essentially required coal companies to obtain permission from surface owners before strip mining.

But it still did not stop underground miners, or gas and oil drillers, from entering or damaging a surface owner's property to get to their minerals.

Stewart gave his 300-acre farm, which he called "Kingdom of Yellow Mountain," to UK after being forced to move his 137-year-old homeplace in the late 1970s out of the path of Ky. 80.

William and Jasper Stewart Agriculturual Experiment Farm - Albert Stewart deeded this property to the University of Kentucky upon his death. It is now an agriculture and forestry experimental farm. The house had to be moved several hundred yards from its original location when Kentucky highway 80 cut through the Stewart farm in the 1980's. Photograph and information provided by James A. Stamper.

Consol Energy officials offered six months ago to buy or lease 20 acres of the farm from UK for the air shaft, which they say is needed to serve an underground mine on Jones Fork that has been operating for several years.

On April 24, Consol appeared to press the issue, telling UK in a letter it needed a decision in 10 working days because it was ready to file a mine permit.

UK trustee Grady Stumbo of Hindman said there apparently was nothing UK or the state could do to stop the project, but Consol spokesman Tom Hoffman said last week the company has changed its position.

"Our current thinking is that if the university is unwilling to sell or lease, we'd probably go someplace else," Hoffman said. "Forcing the university into a situation would create a lot of ill will, obviously. At the same time, we're trying to be a good corporate citizen in Kentucky."

In the past decade, Hoffman said Consol "only rarely" has been forced to use its rights under the broad-form deed. "Maybe once or twice," he said.

But Raleigh Adams, a Leslie County member of Kentuckians for the Commonwealth, said he was skeptical.

"Consol doesn't want the bad publicity," said Adams, whose citizens group sponsored the broad-form deed amendment. "And UK could really give them some bad publicity. They want to be good corporate citizens to the people who can cause them problems.

"But the little family landowner out here, who owns 50 or 75 acres, he doesn't have much of a chance."

The property's future, however, is still in doubt while UK weighs whether to sell it or turn it over to a foundation proposed by Stewart's heirs.

When Stewart gave the UK College of Agriculture the farm, he stipulated that it be operated as a demonstration area for agricultural, environmental and natural resources.

In a letter to Consol, UK vice president Jack Blanton noted that UK had begun discussing selling the property only after its agriculture school had "indicated it had insufficient funds to carry out provisions of the deed."

Meanwhile, he said, Stewart's heirs -- some of whom objected to giving the property away in the first place -- "have come forward with a plan to fund the activities" on the farm.

In fairness, UK "believes it must take time to fully consider the proposal of the Stewart heirs and their newly created foundation before making a firm decision on how to proceed," he wrote.

The foundation would help an "environment-related program," said Ray Stewart of Hindman, a family member.

Consol -- formerly known as Consolidation Coal Co. -- has been in Kentucky almost as long as the broad-form deed.

The deeds allowed Eastern Kentucky farmers to keep, and pay taxes on, the surface property.

Speculators then sold the mineral rights to large corporations, including Consolidation Coal, who opened deep mines in the region.

When strip mining began in Kentucky during the 1950s, state courts ruled the rights of mineral owners are superior to those of surface owners. So until 1988, companies often used the deeds as authority to strip mine for coal over surface owners' protests.

Rather than attempt to nullify the deeds -- which legal experts said would amount to an unconstitutional taking of coal owners' property -- the amendment limited mining to the methods contemplated when the mineral rights were sold -- which meant underground mining.

Court rulings since the amendment also require underground mines to repair and compensate surface owners for damage, but Kentucky court rulings allow them to operate without surface owners' consent.

If Consol changes its mind, Adams said he hopes UK will challenge the broad-form deed again in court.

"The makeup of the state Supreme Court has changed over the years," he said. "Maybe this one would do the right thing."

Front view of the house as it appears today. Notice that the old double-level porch has been enclosed. Information and photograph provided by James A. Stamper.