BY JENN McDOWELL

Confusion about the public’s use of Beaver Pond has lasted for years, and has become an issue for Auburn once again.

If there is a legal means for the public to access any pond without trespassing, according to the Department of Environmental Service’s Water Resources Department, outsiders can use the water itself, which is not
technically included in private property of abutting land owners.

At a selectmen’s meeting on Sept. 17, residents who own land along the pond and Police Chief Ed Picard showed up in an attempt to clear up once and for all whether the pond is private or public.

Pond abutter Arthur Cochran expressed concern that town residents are entering his property to get to the pond, and that the town has no ownership or liability to the pond.

Cochran and others living on the pond contend people trespass across their property in order to gain access to Beaver Pond. In one incident, Cochran said, an Auburn police officer declined to kick someone off the pond, saying it was public.

The controversy goes back almost two decades. In 1993, according to state documents, an investigator with the Water Resources Division of the state’s Department of Environmental Services went to the pond, at the board’s request, to make a determination as to whether it was public or private.

In order to be considered public under state law, a body of water must be included on the state’s maintained Official List of Public Waters for the State of New Hampshire. Beaver Pond is not included anywhere on this list.

According to the state law that governs inclusion on this list, a pond must qualify as a “great pond,” which means it must be natural (not man made) and be 10 acres or more in size.

Beaver Pond meets none of the requirements to be considered a great pond, according to a letter from the investigator, Nancy McGrath, who conducted the site study on Aug. 24, 1993.

Fourteen years later, the debate continues. Selectman Harland Eaton pointed out that townspeoople have been using the pond to fish, boat and Jet Ski for years.

Town Administrator Bill Herman said the pond does qualify as public, under the law, because it is an impoundment of more than 10 acres.

According to regulations that allowed the formulation of the state’s Public Waters list, such  impoundments of a natural body of water would be included on the list.

Beaver Pond, being manmade, apparently does not meet this requirement either.

There is a dam located on the pond, but town and state documents say a previous land owner on the pond, William Cooper, applied with DES to register the dam privately.

Cochran said he has the right to keep people from entering his the pond, pointing to the state’s definition of public water bodies.

“It’s private property. It’s not my interpretation, it’s the state of New Hampshire’s,” he said.

Herman told Cochran and the other owners present that while they have rights to the pond bed, they do not have rights to the actual water.

“The state owns the water,” Herman said, adding that the abutters pay taxes only on the land beneath the water, not the water itself.

Michael Rolfe, one of the land owners on Beaver Pond, disagreed with his fellow abutters at the meeting.

He said a dry hydrant by Bunker Hill Road provides a legal entry to the pond for people in town. This is where most of the townspeople are entering the pond.

The disgruntled pond abutters and town officials are in disagreement over whether the people entering over this dry hydrant are actually crossing property lines.

According to the state, property lines for land owners on the edge of ponds extend from the pond bed up to through the owner’s property, and could be broadened to include the entire pond.

With public water bodies, the state holds in trust the bed and water up to the high water mark. For land owners living along state waters, their property lines generally start at that high water mark.

Eaton said the board would further investigate the matter to get a current ruling from the state.