Great pond (law)
Encyclopedia
A great pond in the United States
is a pond
or lake
that is held in trust
by the state
for public use. Generally, any natural body of water that is larger than 10 acres (40,468.6 m²) in size is public water. In certain New England
states, this legal definition exists at both common law
and statutory law
.
, described the development of the law of great ponds in Concord Mfg. Co. v. Robertson, a case concerning the rights of individuals to cut and remove ice from a pond adjacent to land they had leased, subsequently reducing the flow of water at a downstream mill. The rights of the ice harvesters and mill owners turned on the question of who owned the water in the pond. In the opinion, Chief Justice Doe stated that "[t]ide waters and large ponds are public waters. Whatever exceptions, if any, may be found, this is the rule."
The English rule used to distinguish between public and private waters was based on the limit of the tide, for those waters that were navigable were subject to admiralty jurisdiction. In the U.S., this rule had been extended to include navigable fresh water "reasonably capable of valuable use as a public way." However, it was not always clear that a pond – isolated from the ocean or a navigable river, but otherwise in the public domain – was reserved for public use. Furthermore, the ability to hunt and fish on public lands had been denied to citizens during feudal
times, and that "system of legal inequality in the enjoyment of public property" was precisely what the colonists sought to avoid. Thus, a new rule defining public waters needed to be established that was not based on the navigability of the waters.
state statute as "any inland body of water which in a natural state has a surface area in excess of 10 acres (40,000 m²) and any inland body of water artificially formed or increased which has a surface area in excess of 30 acres (120,000 m²) except for the purposes of this article, where the artificially formed or increased inland body of water is completely surrounded by land held by a single owner."
The term "great pond" originally derives from colonial statutes pre-dating Maine's separation from Massachusetts
. Special statutory regulations apply to land adjacent to great ponds for the purposes of shoreland protection and timber harvesting. Maine state law provides for public access to "great ponds."
or lake
that is in its natural state at least 10 acres (40,468.6 m²) in size. This includes ponds that met the criterion at one time but are now smaller.
, public waters are defined by common law to include all natural ponds of more than 10 acres (40,468.6 m²). In addition to the common law definition of great ponds, similar definitions can be found in the New Hampshire Revised Statutes Annotated
, for example, in the Wetlands Act, RSA 482-A:21.
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
is a pond
Pond
A pond is a body of standing water, either natural or man-made, that is usually smaller than a lake. A wide variety of man-made bodies of water are classified as ponds, including water gardens, water features and koi ponds; all designed for aesthetic ornamentation as landscape or architectural...
or lake
Lake
A lake is a body of relatively still fresh or salt water of considerable size, localized in a basin, that is surrounded by land. Lakes are inland and not part of the ocean and therefore are distinct from lagoons, and are larger and deeper than ponds. Lakes can be contrasted with rivers or streams,...
that is held in trust
Trust law
In common law legal systems, a trust is a relationship whereby property is held by one party for the benefit of another...
by the state
U.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...
for public use. Generally, any natural body of water that is larger than 10 acres (40,468.6 m²) in size is public water. In certain New England
New England
New England is a region in the northeastern corner of the United States consisting of the six states of Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, and Connecticut...
states, this legal definition exists at both common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
and statutory law
Statutory law
Statutory law or statute law is written law set down by a legislature or by a legislator .Statutes may originate with national, state legislatures or local municipalities...
.
History
As is often the case in the United States, the "law of great ponds" descended from early English common law. In 1890, Charles Doe, Chief Justice of the New Hampshire Supreme CourtNew Hampshire Supreme Court
The New Hampshire Supreme Court is the supreme court of the U. S. state of New Hampshire and sole appellate court of the state. The Supreme Court is seated in the state capital, Concord. The Court is composed of a Chief Justice and four Associate Justices appointed by the Governor and Executive...
, described the development of the law of great ponds in Concord Mfg. Co. v. Robertson, a case concerning the rights of individuals to cut and remove ice from a pond adjacent to land they had leased, subsequently reducing the flow of water at a downstream mill. The rights of the ice harvesters and mill owners turned on the question of who owned the water in the pond. In the opinion, Chief Justice Doe stated that "[t]ide waters and large ponds are public waters. Whatever exceptions, if any, may be found, this is the rule."
The English rule used to distinguish between public and private waters was based on the limit of the tide, for those waters that were navigable were subject to admiralty jurisdiction. In the U.S., this rule had been extended to include navigable fresh water "reasonably capable of valuable use as a public way." However, it was not always clear that a pond – isolated from the ocean or a navigable river, but otherwise in the public domain – was reserved for public use. Furthermore, the ability to hunt and fish on public lands had been denied to citizens during feudal
Feudalism
Feudalism was a set of legal and military customs in medieval Europe that flourished between the 9th and 15th centuries, which, broadly defined, was a system for ordering society around relationships derived from the holding of land in exchange for service or labour.Although derived from the...
times, and that "system of legal inequality in the enjoyment of public property" was precisely what the colonists sought to avoid. Thus, a new rule defining public waters needed to be established that was not based on the navigability of the waters.
By the English rule thus modified, the legal title of New Hampshire land was in the king, who held it as trustee in his official and representative capacity, with no private interest. The dry land, and the soil under fresh rivers, brooks, and small ponds, was convertible, by his grant, into private property, for settlement, and for the advancement of the common welfare. The seashore, arms of the sea, and large ponds, by reason of their special adaptation to public uses, were set apart and reserved as public waters. They could not be converted into private estate or subjected to a private easement, by the trustee's grant, or by any act of the executive branch of the government. The distinction is between what the trustee held for public use and what he held for the purpose of sale or other appropriation to private use for the public benefit.
In 1647 the want of a definition of “great ponds” was supplied,. . . that no town shall appropriate to any particular person or persons any great pond containing more than ten acres of land, and that no man shall come upon another's propriety [sic] without their leave.
Maine
A great pond is defined in MaineMaine
Maine is a state in the New England region of the northeastern United States, bordered by the Atlantic Ocean to the east and south, New Hampshire to the west, and the Canadian provinces of Quebec to the northwest and New Brunswick to the northeast. Maine is both the northernmost and easternmost...
state statute as "any inland body of water which in a natural state has a surface area in excess of 10 acres (40,000 m²) and any inland body of water artificially formed or increased which has a surface area in excess of 30 acres (120,000 m²) except for the purposes of this article, where the artificially formed or increased inland body of water is completely surrounded by land held by a single owner."
The term "great pond" originally derives from colonial statutes pre-dating Maine's separation from Massachusetts
Missouri Compromise
The Missouri Compromise was an agreement passed in 1820 between the pro-slavery and anti-slavery factions in the United States Congress, involving primarily the regulation of slavery in the western territories. It prohibited slavery in the former Louisiana Territory north of the parallel 36°30'...
. Special statutory regulations apply to land adjacent to great ponds for the purposes of shoreland protection and timber harvesting. Maine state law provides for public access to "great ponds."
Massachusetts
A great pond is defined in Massachusetts statutes as a pondPond
A pond is a body of standing water, either natural or man-made, that is usually smaller than a lake. A wide variety of man-made bodies of water are classified as ponds, including water gardens, water features and koi ponds; all designed for aesthetic ornamentation as landscape or architectural...
or lake
Lake
A lake is a body of relatively still fresh or salt water of considerable size, localized in a basin, that is surrounded by land. Lakes are inland and not part of the ocean and therefore are distinct from lagoons, and are larger and deeper than ponds. Lakes can be contrasted with rivers or streams,...
that is in its natural state at least 10 acres (40,468.6 m²) in size. This includes ponds that met the criterion at one time but are now smaller.
New Hampshire
In New HampshireNew Hampshire
New Hampshire is a state in the New England region of the northeastern United States of America. The state was named after the southern English county of Hampshire. It is bordered by Massachusetts to the south, Vermont to the west, Maine and the Atlantic Ocean to the east, and the Canadian...
, public waters are defined by common law to include all natural ponds of more than 10 acres (40,468.6 m²). In addition to the common law definition of great ponds, similar definitions can be found in the New Hampshire Revised Statutes Annotated
New Hampshire Revised Statutes Annotated
The New Hampshire Revised Statutes Annotated forms the codified law of the state subordinate to the New Hampshire State Constitution.-History:The RSA is a set of law books published by Thomson West...
, for example, in the Wetlands Act, RSA 482-A:21.