How to Handle a Situation Concerning a Private Pond

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“I purchased a home 6 years ago. I have 3 3/4 acres of land. Approx. 2 acres are in a 15 acre manmade pond. There are six other abutters to the pond with land in the pond. There is a road on the far side of the pond and two of the pond owners property lines come together at that point, so the entire pond is owned by the 7 people. We all pay taxes on all of our land, including the land in the water. The pond is called Beaver Pond and it is not on the Official List of Public Waters for the State of New Hampshire. Once in awhile, a trespasser rides down the road and decides to throw a boat into the pond ignoring the “No trespassing” signs. When they are told it is a private pond and are asked to leave, most do. Once in awhile, they challenge the ownership by saying, “You can’t own water.” and we have to call the Police. The Police have always asked them to leave and there has never been a problem, until recently. The Police were called and the officer told the trespasser that he could stay, that it must be public waters. Of course, word travels fast and the next day there were 4 boats on the pond. We contacted the Police Dept. and the Chief said he needed us to get a ruling from the Town saying it was private in order for him to enforce no trespassing. We went to the town with a copy of a 1993 letter from NH DES to the Town of Auburn which said it was not a public water and therefore did not require public access. The elderly Selectman said he thought the law had changed and we needed more proof. We contacted the DES and they stated that Beaver Pond is not a Public Water and therefore does not require public access. They also said no laws had changed and that it was a private pond and they had given the Town of Auburn that information back in 1993. Since then, I have acquired copies of numerous letters from 1993 from the State of NH DES to Auburn Selectmen and to the Auburn Police and vice versa. There was an issue with the dam not being registered when it was built, but it became registered in 1993 and the State of NH stated they have no jurisdiction that the pond was privately owned by five (now seven) individuals. This elderly Selectman keeps talking about how he has land and he posts it, but he turns a blind eye and lets people hunt on it. He says by posting it, it takes away any liability. He appears to be suggesting that we do the same regarding the pond. So, now he is going to hold a meeting for the seven property owners. We have no idea why. Bottom line, it is a wildlife pond, blue heron, beavers, ducks, geese, turtles etc. live there. We don’t want people on the pond. There would be no control and no rules, like with public access waters run by the state.

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This all started because the Police Chief says he needs the town to tell him if the pond is public or private so he can enforce the law properly. The town will not tell him it is private, even though we have all this documentation.

What should we do?”

I’m not familiar with the “public waters” doctrine in New Hampshire, but it sounds like your problem is with the local government, and not so much with the law itself.

In the extreme, you could sue the selectmen and/or the police, requesting that the court issue a writ ordering them to do their job. I would do whatever you can to avoid that lawsuit, however.

In general, you seem to be on the right track, gathering your information and opinions on the state level to present. You could also consider, for example, putting a locked gate on the road (though if I’m picturing the lake correctly, that’s more in the hands of your neighbors).



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Author: House Attorney

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