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08/24/87 WAYNE R. MCCLUE AND WARREN T. MCCLUE v.

Filed: August 24, 1987.

WAYNE R. MCCLUE AND WARREN T. MCCLUE, APPELLANTS (DEFENDANTS BELOW),
v.
THE STEUBEN LAKES REGIONAL WASTE DISTRICT, APPELLEE (PLAINTIFF BELOW)



APPEAL FROM THE STEUBEN CIRCUIT COURT, Honorable Dane L. Tubergen, Judge, Cause No. C-86-391.

Conover, J. Miller, P.j. and Buchanan, J., concur.

Author: Conover

CONOVER, J.

Defendants-Appellants Wayne R. McClue and Warren T. McClue (the McClues) take this interlocutory appeal in a condemnation proceeding instituted by Plaintiff-Appellee Steuben Lakes Regional Waste District (Steuben Lakes) seeking to take the McClues' land for a public use.

We affirm.

ISSUES

The McClues present one issue for review, whether the use of their land proposed by Steuben Lakes is a public use.

FACTS

In lieu of a central filtration plant, Steuben Lakes sought to establish "cluster systems" to provide sewage disposal to homes in its region. The cluster system operates by having a central filter bed to which sewage is pumped from a cluster of homes. The sewage bed is a large septic system with a central collection area and perforated pipe running in gravel bedding extending out from the collection area from which effluent escapes into the soil.

The federal government provides 85 percent of the cost for the systems, and the state government 6 percent; leaving the land owners to pay only 9 percent of the cost. The system objected to by the McClues would support 41 properties. Thirty-seven property owners have signed up for the system here at issue. Houses built before December 26, 1977, could hook up to the system for $910. Houses built after this date could hook up to the system for $10,111.11, the cost without federal and state funding. A hook-up could be compelled if an owner lived within 300 feet of a pipeline running to the central field.

The land to be used for the sewage bed is owned by the McClues. Steuben Lakes began condemnation proceedings on October 24, 1986. Objections were filed by the McClues and a hearing was held. On February 25, 1987, the court ruled the use of the McClues' land was for public use and for public purposes. From this ruling the McClues appeal.

Discussion AND DECISION

The McClues argue the taking of their land for a cluster system is not for a public use.[Footnote 1] We disagree.

As a general rule, which is sometimes declared by statute, the construction of sewers, or other provision for disposing of sewage, is a public use for which ...


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