THORNDIKE POND CONSERVATION ASSOCIATION
Minutes of Annual Meeting
Wesselhoeft Farm, Jaffrey, N.H.
August 7, 1960
Due to the lowering of the Pond and other situations of interest to Thorndike land-owners, a meeting was hastily organized for September 3rd to discuss the feasibility of establishing an association to safeguard the future of the Pond and its immediate surroundings. Despite a very short notice of three days, between 40 and 45 persons attended the meeting, representing 25 tax-payers with property abutting the pond itself. Since subsequent research has led to a total of approximately 47 shore-line- land-owners, it is heartening that a clear majority could so quickly be mobilized, not to mention a good number of absentees who forwarded their support by mail and phone. The following is the synopsis of a meeting which we hope will have great importance for Thorndike land-owners and their families in the years ahead.
The meeting was called to order by the writer, representing an informal committee of three or four persons who had previously assembled to draw up an agenda for consideration by Thorndike people. Although the water rights were held to be the most pressing issue, it was explained that an association would also be interested in numerous other items such as the future sale of Thorndike real estate, the general appearance of the shore-line, the condition of the water itself, use of the Pond by "outside" motor boats, town taxes, road maintenance, etc.
The Chair then proposed that two steps be taken immediately:
- The formation of a body to be known as The Thorndike Pond Association.
- That said body be authorized to hire counsel for a thorough and business-like investigation of the water rights issue,
Regarding Item 2 above, it was brought out that while many of us had made inquiries and protests on an individual basis, there had never been a full-scald, "legal-type" investigation conducted on behalf end with the obvious strength of all the land-owners. In brief, the investigation would cover the following points, plus others which would no doubt arise en route:
- A precise description of the flowage rights held by the present Peterborough wills, Inc., (wholly-owned subsidiary of Hargo Woolen Kills, Inc. of Keene)
- Any precedents established by a NH. Court in which a landowner was able to overcome or mitigate a bad water situation.
- The possibility of purchasing the water-rights, and our own obligations regarding the waterway in event of purchase.
- The possibility of Thorndike land-owners reimbursing the mill for electric power it must buy if the Pond is not drawn until after Labor Day.
- A study of the usage of our water at the mill to determine the extent of wastage (known to be considerable) and to work out means by which the opening of the dam might be coordinated more accurately with actual mill demand. The possibility of our installing our own dam operator is also to be considered.
- Any and all legal methods by which we as land-owners can bring about more favorable control of the dam, including resource, where applicable, to such state bodies as Health Dept, Fish & Game, Tax Commission, Water .Resources Board, and officials concerned with conservation.
It was then moved and seconded that the Thorndike Pond. Association be brought into existence. The motion was accepted unanimously by voice vote.
The question of membership qualifications was discussed, and it was agreed that membership be restricted to owners of land abutting the Pond itself - at least for the time being. It was further agreed that a committee be formed to work out other classifications of membership for interested persons not immediately eligible.
The Chair then suggested the Association be incorporated, non-profit, under the laws of the State of N. H., but it was the general' feeling that the necessity for such a move be investigated further and a report made to the membership at a later date.
A nominating committee was then appointed, and the following slate of officers was presented and approved for the coming year:
- Frederick T. Ernst - President
- Fred W. Hust Jr – Vice-President.
- Robert P. Hadley – Treasure
- Jane K. Ernst - Clerk
The subject of membership dues was discussed, and it was explained that while we could reasonably expect a lower figure in future years, the sum of $10 per land-owner would be required this year to establish a treasury of sufficient substance to cope with initial office and organizational costs. These dues will cover the year September 1, I960 through August 31, 1961, a period, to be established as the Association’s first fiscal year.
It was then moved and seconded that the officers be empowered to hire counsel for the water rights investigation and that they be permitted to spend up to but not more than $200 without further permission of the membership, said funds to be provided by additional assessment, over and. above the basic dues, on an equal-share basis by the entire membership. The motion was accepted by voice vote.
The meeting was adjourned, after which dues and winter addresses were assembled by the Treasurer and Clerk, respectively. All of the eligible land-owners present either took out membership at this time or have clone so since.
Report on Developments Since the Initial Meeting
During the week following the Labor Day week-end, Mr. John R. Goodnow of Keene was engaged by the writer to conduct the water rights investigation and also to represent us in any relationships that may be necessary with the Hargo Woolen Mills, Inc., the firm actually responsible as far as we are concerned. The writer feels Mr. Goodnow is an excellent choice for this task, as he is a long-established person in the field and one possessed of the proper balance of force and humor - two factors which will no doubt be of value in dealing with Harold Erskine at Hargo. Mr. Goodnow has also served with the Supreme Court of N. H., a role of some stature in any state. Mr. Goodnow was given a detailed listing of points to be covered, plus as much background on the situation as he deemed necessary. In a subsequent meeting on September 19th, the following points (some important, some merely interesting) were brought out as a result of his preliminary work:
- Deed searches delving into antiquity can become very expensive, and unless the information proves to be vital, it is probably unnecessary for us to locate the very first deed involving Thorndike flowage rights. Whenever it occurred, we know it preceded 1838, for a dam of some kind existed in the present location on this date. Actually, two dams were in existence in l838, the other one most probably down below on the outlet stream.
- In 1885, the main dam was either replaced completely or built higher, for new flowage rights were then deeded to the existing mill (Phoenix) by a large Dublin and Jaffrey land-owner named Abbott. Mention of the other dam has ceased by this time, so it is presumed to have been destroyed or neglected.
- Mr. Abbott, who owned all of Thorndike's Dublin shore-line plus a good stretch of the west shore in Jaffrey, raised cattle and used the environs of the Pond for grazing. As might be expected, his interest in the water of the Pond was the exact reverse of ours. He naturally wanted the water kept low to maintain his best grazing area, for sporadically inundated land was of doubtful value to him, albeit the coming and going of the "tide" did produce an excellent type of feed grass. At any rate, he stipulated in the 1885 deed that the water was not to be raised higher than the altitude of an iron bolt in a rock near the dam. A search is being made for this bolt (or its hole) in event that its presence may be important.
- The legal precedent by a N.H. court hoped for in our outline to Mr., John Goodnow not only exists but in a most helpful and un-appealable form. The case of Chapman (shorefront landowner) vs. Newmarket Mfg. Co. (flowage rights owner) came before the N.H. Supreme Court in 1908. It is a complicated case to describe, but in brief, Mr. Chapman's accusation held that the mill had "unreasonably used the water.... by improperly managing the dam." The mill contended that "because its deeds of flowage rights are absolute in form, the right conveyed is without limitation, so far as the servient estate (Chapman) is concerned." The Court subsequently ruled in favor of Mr. Chapman, making the following pronouncement, among others: "There is no presumed grant of the right to exercise the easement (i.e. the flowage rights) in an unnecessary and unreasonable manner. The right of the easement owner (the mill) and the right of the landowner are not absolute, irrelative, and uncontrolled, but are so limited, each by the other, that there may be a due and reasonable enjoyment of both. The right is not to be exercised arbitrarily whenever the one entitled to exercise it thinks proper or sees fit, but only when there is a reasonable necessity for its exercise." These words by the Supreme Court of N.H. are law in final form, subject perhaps to interpretation, but not to appeal. In short, we have in our possession some mighty powerful ammunition should the issue ever come to the point of contest. In fact, it now seems almost sure that we would come out ahead should it become necessary for us to take the issue to court.
- Mr. Goodnow and the writer feel at this time that a solution to the water problem is highly probable short of a legal contest. His plan is to assemble as much background information and ammunition as possible for presentation to Mr. Erskine along with the several remedial proposals already outlined above. If all goes well, an equitable arrangement should result; if, on the other hand, the mill wants to stand stubbornly on its "rights," presumably to avoid a precedent which might start trouble at other ponds, then we will not hesitate to put our case in final form for the courts. The writer will keep Association members informed of developments from time to time in the coming months.
- Regarding the question of forming a non-profit corporation. Mr. Goodnow does not feel this to be really necessary unless the Association is to own property such as water rights or real estate. Should such a situation ever appear imminent, incorporation could be effected in a matter of a week or ten days, so it is Mr. Goodnow's advice to wait awhile and see what develops.
Undoubtedly our most pressing need at the moment is to secure the 100% participation of shore-line land-owners in the Association. As previously mentioned the Association has already been favored by a majority of eligible land-owners, but our ultimate strength - both financial and psychological - obviously cannot be attained with anything less than total support. If we wish to protest an unfair town tax assessment for instance the amount of action we get may reasonably be expected to vary with the number of teeth that accompany the growl. From the financial viewpoint, it is unlikely that any of the Association's operation will impose heavy individual burdens, and especially so if our costs can be spread over approximately 47 families.
With these factors in mind, we hope that all eligible land-owners not already registered will contact Robert P. Hadley, Treasurer, 146 Sunset Avenue. Amherst, Mass, as soon as possible. The use of the attached blank will be helpful.
Members may expect to be contacted by bulletin from time to time through the winter and spring so that everyone may keep abreast of the latest developments. In the meanwhile, the undersigned will appreciate any comments or suggestions regarding the conduct of the Association and its projects.
Respectfully submitted, Frederick T. Ernst, President