Taking Another Look At The Great Ponds Act
By Ray Campbell
When Maine was part of Massachusetts our forefathers wrote the following Colonial Ordinance of 1647: “Upon all great ponds lying in common, though within the bounds of some town, it shall be free for any man to fish and fowl there, and he may pass and repass on foot through any man’s property for that end, so long as he trespasses not on any man’s corn ( old English word for crops), or meadow (hay).”
In 1820, when Maine separated from Massachusetts, we carried over with us in the Articles of Separation, this ordinance which is now referred to as the Great Ponds Act. A great pond is any body of water, ten acres or larger, in its natural state, or any flowed body of water 30 acres or larger.
In 1873, the Supreme Court of Maine ruled in Barrow versus Mc Dermott that no person could trespass on agricultural land, as that is what the wording in the Great Ponds Act said.
In 1910, in a landmark decision, the Supreme Court of Maine ruled in Conant versus Jordan that even though the ordinance was written in Massachusetts, and even though Massachusetts took the position that the Commonwealth held the water in trust for the people, the court found that not to be true in Maine. Since the ordinance said “any man”, the court found that the water belonged in common to the people and not the state. This means that all the people in Maine from Kittery to Fort Kent own an equal share in all the water in Maine from Kittery to Fort Kent. Common ownership of the water is not always fully understood in southern Maine where people tend to believe that owning waterfront property gives them “special rights” to the water. The court also ruled that all the land from the low water mark under a Great Pond belongs to all the people.
In 1971, the legislature passed a law that said that a person couldn't trespass on improved land in order to reach a Great Pond.
Rivers and streams are regarded as navigable water. The land under the rivers and streams belong to the riparian landowner (the person who owns the land bordering the stream), but the water belongs to the people. Navigable water refers to rivers or streams that for any moment of the year are large enough to float a saw log or boat – which just about covers any stream in Maine. The navigable waters were the original highways of Maine, and as such have an easement on both sides for the use of the public. These easements extend from the low water mark to the high water mark, which is described as where the “ice scores the trees”.
Should the riparian landowner wish to dam the stream he or they must get permission from the legislature before doing so, and if allowed to do so, they then have three conditions that must be met.
- They must allow for the passage of boats.
- They must allow for the passage of fish.
- They cannot flood land that does not belong to them.
According to University of Maine at Orono law professor, Dr. Knud Hermansen, who is commonly recognized as the leading expert on easements and access in the State of Maine, there is a case in the 1800’s where a town built a bridge across a stream that resulted in a hung log drive. The drivers then blew the bridge, and were sued in court by the town. The log driving company won the suit, as the court ruled that no entity can put an obstacle on a state highway (which the stream was), without permission from the legislature. No person can cross another’s land to get to navigable waters, but the public does have an easement on both sides of the stream, once they are on those waters. Any person or entity attempting to deny another access to a Great Pond can be fined $100.
This basically covers the rights of all Maine citizens regarding access to Maine waters.