Great Ponds and Water Boundaries

As some of you may know, I’m a land surveyor though I don’t practice on my own anymore. Land surveyors in Maine deal all the time with riparian and littoral boundaries- otherwise known water boundaries. If your property is on a lake or bounded by a brook, stream, or river, then you have a water boundary and you are a either a littoral (pertaining to lakes and ponds) or a riparian (pertaining to moving water- rivers, streams) land owner. Since we’re dealing with Clary Lake which is a Great Pond, I’ll skip over the others and just deal with littoral boundaries i.e., properties adjoining a Great Pond.

Common law provides guidance in interpreting deeds that bound on Great Ponds which are defined as bodies of water over 10 acres in size. People owning upland adjoining a Great Pond are littoral property owners and own the land down to the “natural low water mark” which is the line on the shore defined by the water when it is at it’s lowest possible level (unless the words of their deed limit their title). If the Great Pond is formed, or partially formed by a dam, then the natural low water mark is the level of the water if the dam were removed. The State of Maine owns the land below the natural low water mark, held in trust for the People. For ponds that are less than 10 acres in size, the underlying fee of the land below low water mark is privately owned, usually by the adjoining owner or owners.

In the case of a Great Pond that is formed (or expanded in size) by a dam such as Clary Lake, then the land between the natural low water mark and the normal high water mark, though likely owned by the adjoining owner, is subject to an easement for the public to pass and repass as well as being subject to the rights of others to flood or flow the water on it, more or less as they see fit. Typically these water rights or flowage rights were bought or traded for by the original dam builder many many years ago, possibly hundreds of years ago when the water body or stream was first dammed up. These water rights or flowage rights can be transferred just like real property- they can be bought and sold, or traded. They are usually associated with a mill privilege which is pretty much what it sounds like- a right or privilege to maintain and operate a dam or mill on a stream or body of water. These ancillary property rights usually pass with the actual dam or mill building and associated real estate.

Occasionally the actual land between the low and high water marks was transferred to the dam owner or someone else who wanted it, but this was rare. Usually only the right to flow (or flood) the land was sold. It is also possible that in some cases, these water rights were acquired by prescription which means they were obtained through use for a long period of time. In other words, if a person has been flooding and draining a piece of land for the statutory period required by law to obtain those rights through use, then they have acquired a prescriptive easement on the property in question even if they never bought them. So in the case of Clary Lake, given that there’s been a dam on the lake for over 100 years and possibly much much longer than that, it’s pretty much a moot point whether Chester Chase or his predecessors in title or Henry Clary and his predecessors in title actually ever bought all the flowage rights on all the land affected by the dam on the lake.

Regarding the public easement over land between the high and low water marks of Great Ponds, it also includes rights for public access to and from the Great Pond over unimproved private property, as long as they’re walking. The actual wording of the law on the books is:

Maine Revised Statutes, Title 17 Crimes, Chapter 127, Section 3860: No person on foot shall be denied access or egress over unimproved land to a great pond except that this provision shall not apply to access or egress over the land of a water company or a water district when the water from the great pond is utilized as a source for public water

The Attorney General shall, upon complaint of a person being denied said access or egress, if in his judgment the public interest so requires, prosecute criminally or civilly any person who denies such right of access or egress. 

So there. I’m not sure what “unimproved land” is, but I’m pretty sure it’s not your mowed lawn and flower bed. This law would appear to rule out someone in a wheel chair crossing your property to fish. It certainly rules out someone on a 4 wheeler or motor bike.

So as you stand on your upland looking out at your lowland and out at the lake, understand that all that newly drained land between what used to be the high water mark and what is now the new (and presumably temporary) low water mark is yours, subject to the rights of the public to walk on it and of course subject to the rights of the dam owner to drain it or flood it. And if while standing there someone walks up behind you with a fishing rod headed for the lake, they’re probably entitled to do so 🙂

I am not a lawyer, and this is not legal advice.

George Fergusson <gsfergusson@clarylake.org>