Struewings vs. Village goes to trial
- Published: July 28, 2011
A lawsuit that has cost the Village almost $40,000 regarding access to Village water for an out-of-town property is going to trial this week.
The case, initiated by plaintiffs Kenneth and Betheen Struewing, will be heard by Magistrate Raymond Dundes in the Greene County Common Pleas Court on July 21.
Last month Village Solicitor John Chambers submitted to the court a motion for summary judgement, which if granted would mean that both sides agree on all of the material facts in the case, and that based on those facts, the Village should prevail. However, last week the motion was denied, setting the stage for this week’s trial.
The lawsuit seeks water and sewer rights for a 34-acre undeveloped Hyde Road property owned by the Struewings just outside Village limits. The suit also contends that the Village has been trespassing for more than 40 years by running sewer lines through the property, which the Struewings purchased in 2005, and that if water and sewer rights are not allowed, the lines should be removed.
The suit, which was filed in September 2009, has taken almost two years due to a lengthy process of discovery and mediation, according to Chambers.
The suit began in 2009 after Kenneth Struewing requested from Village Council tap-ins for the land, which was formerly owned by longtime Village Manager Howard Kahoe. The request was denied, based on Village policy to not extend utilities outside Village boundaries except in the case of environmental issues, which was not pertinent to the Struewing property.
After being turned down by Council, the Struewings presented to the Village an easement authorizing unlimited tap-ins to the property that Kahoe signed in 1974, just a short time before he retired from his position. The easement authorizes tap-in rights for his property in exchange for the permission he granted to the Village 14 years earlier to run a sewer line through the land.
However, according to Chambers in a previous interview, the Kahoe easement is not binding because the Village never approved it and was not even aware of it. Village law states that the Council, not the Village manager, needs to approve such easements, the defendants state, and Kahoe apparently created the easement to serve his own needs without the knowledge of the Village.
The Struewings filed a suit against the Village in September, 2009, after the Village was not moved by the easement to reverse its stand and grant water rights to the property. If developed with Village water and sewer, the Struewing property could contain 34 homes, and having tap-ins would allow much greater density and save a developer considerable expense. However, in a previous News story, Struewing stated that he did not intend to develop the property. Neither Struewing nor his attorney returned phone calls seeking comment for this article.
According to response to the summary judgement motion written by Struewing attorney Arthur Hollencamp, the Village has been trespassing on the property since 1963, when the Village ran a sewer line through it.
However, according to the Village, because the sewer line has been located on the property for more than 40 years, way past any statute of limitations; because Kahoe gave his permission for the line; and because Struewing knew of its existence when he purchased the property, there is no question of trespass.
There are some points of agreement between the two sides. Both sides agree that in about 1960 the Village, beginning a new sewer project for the south side of town, asked Kahoe for permission to locate a sewer line through his property. Both sides also agree that Kahoe was initially reluctant to give permission, according to a deposition from an engineer involved in the sewer construction, and said he would do so only if it were the least expensive alternative. When the engineer concluded that it was the least expensive option, Kahoe agreed.
At this point in the narrative, the two sides differ in their interpretations of events.
Had Kahoe not been in agreement with the construction of the line, he had ample opportunity to bar its construction and beyond that, to sue the Village to have it removed within a 15-year period after which a claim would be denied due to a statute of limitation, according to the Village. Kahoe did not do so, and continued to live on the property for decades after the sewer line was constructed. The Struewings, as successors to Kahoe, only have the rights that Kahoe possessed, and Kahoe no longer had the right to sue for removal of the line.
However, according to the Struewing response, the easement that Kahoe wrote allowing water rights to his property should be considered binding because it is fair compensation in exchange for Kahoe’s permission to run the sewer line through his property. The plaintiffs also say the easement should be binding because Village Council must have approved of it, even though there is no written record of its having done so.