A large pond is defined in Maine law as “any inland water body that is more than 10 acres (40,000 m²) in its natural state, and any artificially formed or enlarged inland water body covering more than 30 acres (120,000 m²), except for the purposes of this section, if the artificially created or enlarged inland water body is completely surrounded by land: that are owned by a single owner.  The English rule distinguishing between public and private waters was based on the tidal limit, as navigable waters were under the jurisdiction of the Admiralty. In the United States, this rule had been extended to navigable freshwaters, which “may reasonably be used as a valuable highway.”  However, it was not always clear that a pond – isolated from the sea or a navigable river, but otherwise in the public domain – was reserved for public use. Moreover, in feudal times, citizens had been denied the opportunity to hunt and fish on public lands, and this “system of legal inequality in the enjoyment of public property” was exactly what the settlers wanted to avoid.  It was therefore necessary to introduce a new rule defining public waters that was not based on the navigability of waters. As you can see from reading this article, buying a waterfront property on a lake or pond is expensive and raises a very complicated area of law that requires special expertise. If you have additional questions about the ownership of lakes or ponds in the Bottomlands of Virginia, our experienced team is here to help. Contact us here. Massachusetts general law states that all large ponds must be open to fishing and boating, including reasonable access to the pond, except for reservoirs.  The starting point is Virginia Code §28.2-1200, which, with a few exceptions (which we will discuss in a future blog post), gives the Commonwealth of Virginia ownership of all lowlands of bays, rivers, streams, and seashores. Most importantly, this law does not apply to lakes and ponds. Instead, the lowlands of lakes and ponds are privately owned.
In most cases, the owners of waterfront properties are the same as those who own the lowlands of lakes and ponds. However, many acts do not have the specific legal conditions that give as much control to the owner from the waterfront to the lake or pond. Instead, the deed may (or may not) mention that there is a lake or pond next to the transferred highland property. This leads to two other situations. Second, and as a general rule, the constancy land on the lake or pond does not already belong to another person and can therefore be transferred, but the deed does not have the necessary legal conditions to give the owner of the riparian property the power to control activities on the lake or pond. In this situation, the owner of the waterfront property owns the constancy land to the middle of the lake or pond (just like the other riparian owners of that lake or pond). All owners of the waterfront property have the right to use all surface waters for boating, fishing and swimming. All waterfront property owners have the right to construct a dock or pier, subject to local zoning laws and the requirements of Virginia Code § 62.1-164. None of the owners of the waterfront property are authorized to fence off any portion of the pond lake. They bought a beautiful waterfront property and paid (a lot!) extra to get those beautiful views and water-related recreational activities. A few months ago, we asked in this blog: Can you stop noisy jet-skiers or boaters who like to park just outside your waterfront property to fish, socialize, or party? The answer, we said at the time, is, “It depends.
We`ve also said that you have a better chance of exercising some control if your property is located on the waterfront near a lake or pond, as opposed to a waterfront on a bay, river, stream or the shores of the sea. In this article, we explain your rights if you own a waterfront property by a lake or pond. The best document is the one that, in addition to the transfer of the highlands, also legally determines the specific part of the lake or pond soil contained in the deed. When the buyer of a waterfront property receives this type of deed, he or she has the boundaries of the land for the land specified in the deed. This waterfront owner may construct a dock or pier anywhere on the land he owns, complying only with local zoning law and the requirements of Virginia Code § 62.1-164. This riparian property owner may deter others from constructing a wharf or jetty on the land owned by that riparian owner, may discourage others from boating, fishing and swimming in the water above that plain. If the dam is located on the land described in the deed, that riparian owner can raise or lower the water level almost at will. The Virginia Supreme Court even said that someone with this kind of act can build a fence in the pond or lake to keep others away from their soil. Since this type of deed is so powerful, this owner does not have to share the rights to the area of his land with one of the other owners on the water by the lake or pond. Disputes, if not resolved informally, may be brought before the Circuit Court. In New Hampshire, public bodies of water are defined by common law as including all natural ponds larger than 10 acres (40,000 m2).
In addition to the common law definition of large ponds, similar definitions can be found in the revised New Hampshire regulations, which are commented on in the Wetlands Act, RSA 482-A:21. “According to the English rule thus amended, the legal title to the land in New Hampshire belonged to the king, who held it as trustee in his capacity as an official and representative without private interest. The dry land and soil beneath the gentle rivers, streams and small ponds could be converted into private property through his gift to settle and promote the common good. The coast, estuaries and large ponds have been separated and reserved as public waters because of their particular adaptation to public use. They could not be converted into private property or subjected to private servitude, neither by the grant of the trustee, nor by any act of the executive power of the government. A distinction is made between what the trustee believed to be public use and what he held for sale or other appropriation for private use in the public interest. In 1647, the absence of a definition of “large ponds” was provided. that no city shall appropriate to one or more particular persons a large pond containing more than ten acres of land, and that no one shall encounter the decency of another without his permission.  As is often the case in the United States, the “law of large ponds” derives from ancient English common law.
In 1890, Charles Doe, Chief Justice of the Supreme Court of New Hampshire, described the development of the Great Pond Act in Concord Mfg. Co. v. Robertson, a case involving the right of individuals to cut and remove ice from a pond adjacent to land they had leased, thereby reducing the flow of water into a mill downstream. The rights of ice hunters and mill owners revolved around the question of who owned the water in the pond. In the statement, Chief Justice Doe stated that “bodies of water and large ponds are public waters. Whatever exceptions are found, this is the rule.  First, in some situations, the Bottomland is already in the possession of another person who has the type of act that provides the high level of control noted above. In this case, the owner of the waterfront property may be frustrated to learn that they have no soil in the lake or pond. As such, he or she cannot build a dock or pier, but someone else (i.e.
the owner of the land) can. Similarly, the owner of the property must live on the waterfront with other people who sail, fish and swim in the lake or pond.