Sunday, June 1, 2014

Lake Pocotopaug Dam and Water Rights

Exploring Lake Issues by Round Table Meeting

The March 6, 2014, at an East Hampton Round Table meeting organized by Chairman Barbara Moore of our town Council, once again raised concerns, questions and challenges pertaining to the future of Lake Pocotopaug, specifically with control of the dam and level of the water in the lake, all of which have irrefutable ties to the very formation of the town. Those attending questioned why a private party controls the Lake's water levels, a perennial theme of lake area property owners and boating enthusiasts since the 1940s. Nearly every summer someone or some group questions why the water level is so high or low, and like the weather being too hot or cold - is often a personal perception! Who controls that level, what is done to monitor it, and finally, what could be done about the situation so that the Town and its people could assume that responsibility emerged as objectives coming from the Round Table and forwarded to the Town Council. Over the years, numerous demands, requests, or petitions to Selectmen, Town Council or Town Manager or in 1976 to the Inland Wetland Commission, by irate homeowners have been met with the same response. After review, usually by town legal council, none of which has been particularly thorough, it has been surmised that since "The Bevin's" (Pocotopaug Water Power Company) own the dam, that they control the water flow and lake level and there is little the town can do unless it wants to purchase that property and the "so called" rights to control that water flow and thus control the level of water in the Lake. To begin to tackle the question one needs to jump back in time to 1714 when a 5 man Proprietor's Committee was appointed by Middletown Selectmen and Town Meeting to survey, divide and award lots to property owners in proportion to the assessed value of their Middletown property.

The Gordian Knot

Lake Pocotopaug dam, its ownership, operation and historic rights, are a huge Gordian's Knot, not easily unraveled. Yes the Bevin's (Pocotopaug Water Power Company) acquired some right in the 1850's, but not what they now claim or have expropriated over time. To unravel the questions one must begin in 1714 when a five man Proprietor's Committee was appointed by the Middletown Selectmen to survey, divide and award lots in the Three-mile Division to property owners in proportion to the assessed value of their property. This process took over 25 years. After accounting for previously granted land to James Wright and others, common areas and highways and Pocotopaug Pond of 540 acres, the remaining 12,576 acres were allotted in 43 acre Lots. What we know as East Hampton was the unsettled territory East of the Great River - land granted ownership and rights by the Colony's Governor and General Court (the predecessor of our Governor and General Assembly). This territory encompassed three areas of settlement - East Middletown (today's Portland), Middle Haddam and Haddam Neck, and the 3-mile Division we know as East Hampton. It wasn't until 1739 that settlers began moving into the area, there to find much of the land not suitable to farming. Of immediate value was the Pond - Pocotopaug - not commonly referred to as a lake until 1900. In colonial times this body of water was not what we perceive today - a recreational treasure for boating, swimming, fishing and its lovely vistas. The gem in 1740 was the water flowing from the southerly outlet of the Pond. The Pond itself was of little value, at least not until the mid 1800s when ice was harvested during the winter and stored in several ice houses for cooling and preserving food. The real value of the lake was the power that could be provided to run water wheels to saw logs and timber, mill grain, and hammer the iron from forges in an emerging industrial age.

Pocotopauge Water Power Company

The Pocotopauge Water Power Company, incorporated November 28, 1899, was formed by owners of the 5 major mills along Pocotopaug Creek - Ernest G. Cone - Summit Tread Co., J. M. Starr - Starr Bros. Manufacturing, A. Avery Bevin - Bevin Brothers Manufacturing Company, H. N. Hill - N. N. Hill Company and George W. Goff and A. H. Conklin - Gong Bell Mfg. Co. The purpose of PWPC was "to own and secure water rights, lakes and ponds, wherever the same may be situated, and in connection therewith to build and acquire reservoirs, aqueducts and canals for the purpose of supplying water for power, domestic and all other uses, within the Town of Chatham; and in pursuance thereof to build and lay water mains through the streets and highways of said town, and generally do all things incidental to said business." Certainly an ambitious undertaking, since there seems to be no approval by the Town, its Selectmen or Town Meeting. In pursuance of PWPC objectives, it acquired property of Bevin heirs on May 15, 1900, which conveyed a certain piece or tract of land known as the "Forge Privilege." Interestingly, the deed specified only that the "right is herein reserved to heirs of Chauncey, Abner and Philo Bevin to raise the water in their factory pond to the level of the lower side of the bottom stone in the east end of the old Forge Dam." The location of the Old Forge dam is uncertain but unlikely not on the Lake, nor does there appear to be any indication of a right to construct a dam or control the water level on Pocotopaug - only the "Bevin" factory pond which was dismantled in the mid 1980s after DEP determined it unsafe following an Army Corps of Engineers inspection.

Iron Works Rights and Privileges

The Bevin brothers, Abner, Chauncey, William and Philo began acquiring the land and old forge rights once associated with the iron works on East High St. in 1850, about 18 years after formation of their bell company. Bevin Bros. has always been located just off of Summit Street – the site of the horrendous fire in May 2012. Acquisition of the old iron works site filled a strategic need to incorporate water power to drive machinery for their factories. To do so, control of the flow of water was required. This was accomplished first, by construction of a holding pond on their property on Pocotopaug Stream, and second, acquisition of the iron works property whose land ran to the southern shores of Pocotopaug Pond and its outlet. In the 19th century, some damming with water flow control enabled them to fill the Bevin Pond at night and drain the pond to operate the water wheel during the business day. The ownership of the “forge privilege” dates back probably to the 1740s but there is no indication in records that those rights included any right to dam the Lake. During the late 1700s up until the first iron forge was torn down in 1810, several men including Abijah Hall and Abijah Hall Jr. owned the land and the forge privilege. In 1795 the Rev. Joel West acquired the land and Cape style house (standing behind Island Coffee Trader on East High Street) along with all the land on West Point; however, the “forge privilege” which apparently included the use of the land and the buildings thereon, was retained. Those rights were sold at various times to others such as Elijah Buell, Elijah Buell, Jr., Joseph Buell, Nathaniel & Jobe Doan or Isaac Riley and Elkanah Sears who continuing operation until 1810.

The New forge and Expanded Rights

In 1825 Jedediah Barstow built a new forge and scythe factory on the site of the old iron works, having acquired a half interest in the “Iron Works standing on Pocotopauge Stream near the Pond and also one equal half of all the land and one equal half of all the buildings standing on or near said premises with all the appurtenances and privileges thereto belonging – reference to Joseph Buell being had for bounds” from Henry Strong. In 1830, Barstow purchased the land including West Point and the 1.5 acres from the Hebron – Middle Haddam Highway from the heirs of Rev. West and others and on a parallel track began acquiring the remaining shares of the Iron Works owned by various parties including Henry Strong, David Buell, William Sears, Henry Bailey, Harry Roberts and William Richmond. The deeds as recorded state that Barstow acquired “one undivided sixteenth part of the Iron Works standing on Pocotopauge Stream near the Pond in Chatham also one undivided sixteenth part of Dwelling house & one coal house with all the privileges, lands and appurtenances therewith belonging – reference to Elkanah Sears deed may be had.” Elizabeth Barstow sold the forge to Charles Shepard in 1847 upon her husband's death. That deed describes a parcel on the Hebron & Middle Haddam Turnpike extending Northerly to Pocotopaug Pond until you come to the east side of the trench leading out of said pond south then along the East side of the trench by lands, heirs of Rev Joel West back to turnpike…with all the buildings, mills, mill privileges, rights of Pond and water appertaining or belonging thereto or to the forge or Iron works or other works thereon standing.” Amazingly, this deed transferred rights never previously granted in prior deeds.

Rebuilding the Dam - 1953

Spring storms had pushed the 50 year old dam to its limits. The gate controlling the flow of water jammed under the immense pressure thus keeping it in nearly a fully opened position prompted several meetings of the Pocotopaug Property Owners Association. Mr. Chauncey Bevin trustee of the Pocotopaug Water Power Company reported plans had been in the works for some time to repair the dam. This work commenced in November by the Hubert Butler Construction Company and completed Dec. 8, 1953. The Middletown Press reported on Nov. 3rd, that "The normal high water level will be the same as it has been in the past. This portion of the dam will contain a gate for controlling the flow of water for use by local industry. Inasmuch as no local firm is dependent upon water for power any more, the maximum rate of flow should be less than half that which was formerly maintained during the working day."

So, why rebuild the dam? The reason was likely economic. The owners all had operating mills along Pocotopaug Stream. The dam was a way to monitor water flow to protect their facilities. People had become accustomed to the higher levels of the lake. Disruption from status quo might raise questions as to exactly what rights existed. If the dam and higher water level were not maintained, the entertainment and summer resort industry that grew in the teens and early 20s, which contributed significantly to the property tax base, could be decimated. The taxable value of individual lake properties would plummet. All the factory owners were residents of the Town and they too enjoyed the beauty of the lake. Had the dam not been repaired, the end result would have been significantly higher property taxes to the 5 factory owners of the PWPC.

Inland Wetlands Commission

Responding to Mr. Robert Crammer, Chairman, regarding Inland Wetlands Commission requests for the Pocotopauge Water Power Company to file for and obtain a permit to operate the dam, Chauncey G. Bevin wrote on June 29, 1976.

"In an attempt to be brief, I am advising that the only purpose I have for having built the dam at Lake Pocotopaug, maintaining and operating it is to provide a service to the town, its residents and property both public & private.

The service is provided at no expense whatsoever to the town and includes among others the following:

(1) a large recreational area for various water activities (2) a tremendous reservoir of water for whatever the needs might be (3) a means of controlling the flow and volume of water which is on occasion used to prevent flooding and possible disaster to private and public property (4) a means of controlling dangerous ice conditions in the winter season thereby preventing damage (5) personnel on duty in my employ 24 hrs per day to provide surveillance of unusual conditions (6) numerous other services and actions required

The entire cost of the operation is assumed by myself. In addition, the town further benefits from the taxes I pay on the dam for the privilege of providing this service.

I would again call to your attention the fact that I do not make the weather nor control it. I do however to the best of my ability, and in the overall best interest of everyone, attempt to co-exist with it.

I also would point out that before I took charge of this operation, there was no water to control. We now have a beautiful lake instead of a nearly dry puddle.

In view of the fact that this dam is in operation and has been for over seventy years under the permit of the DEP and its various predecessor, I believe any other permit is not required. To do so would conflict with State Statutes long in existence. (Ref. Chapter 479 Section 25-110 thru 25-119). Further, your fee for this application you refer to would be $2,558.50."

Attempt to Permit Water Flow

In the early 1970s after the formation of the town's Inland Wetlands Commission, it had questioned the ownership of the dam and control and discharge of water flow, requesting that the Pocotopauge Water Power Company file for a permit to use and discharge water from the Lake. Represented by Attorney Edward F. Woodward, PWPC met with the Commission and provided documentation back to 1900 of the it's ownership and understood rights acquired pertaining to the property and dam built thereupon. Town Counsel, Edward C. Wynne of the firm Wynne, Pontillo & Lynch provided support and opinion to the IWC. In an opinion letter dated October 21, 1976, to Mrs. Doris Barton, Application Coordinator, Attorney Wynne addressed several issues raised by the Commission, including their efforts to require the PWPC to file for and obtain a permit. Mr. Chauncey G. Bevin, graciously met with and provided information and tour of the dam, demonstrating its operations as well as those of Bevin Pond and explained the history of the dam and the other mill ponds that had been constructed on Pocotopaug Brook. He also described conditions, safety measures, and history of hurricanes and floods and damage done by them in past years and decades.

Inland Wetlands Commission meetings in 1976 centered on the issue of control of water flowing from the Lake and the possibility of obtaining permits to do so. Mr. Chauncey Bevin, Pocotopauge Water Power Company trustee and President of Bevin Bros. Manufacturing Co. appeared before the Commission and explained earlier methods of damming, raising and lowering the level of the Lake prior to construction of the 1953 dam. At that time it was Attorney Wynne's (East Hampton Town Counsel) opinion that "if the PWPC was forced to apply for a permit and a permit was issued limiting its right to raise or lower the level of the lake as to water level or as to method or time of raising or lowering such water level, such limitation might well be a taking (condemnation) without compensation, which would be set aside by the Superior Court upon appeal." This apparently was determined from conversations with and correspondence from Mr. Bevin's attorney Edmond F. Woodward, who performed a cursory examination of title, ownership and rights - particularly with respect to damming the Lake. However in an August 20, 1976 letter to Town Counsel Wynne Attorney Woodward stated "the control of the dam and flow of the water has been controlled by Bevin Bros. Mfg. Co. and PWPC since the 1830s and probably long before without question and without challenge. Until very recently, neither the State nor the Town nor any has ever questioned such control."

It is here that Town Counsel Wynne nor Mr. Bevin's attorney failed to conduct a complete and accurate examination of the titled rights, just assuming what was claimed actually existed. Clearly, Bevin Bros. Mfg. Co. only acquired the old Jedidiah Barstow rights in the 1850s - not in the 1830s or earlier.

The Iron Works

The water flowing from Pocotopaug Pond provided immediate value to new settlers of the three-mile division. Lot 132 was awarded by the Proprietors Committee, then sold to Giles Hall sometime in the 1730s, Mr. Hall and his partner, Jabez Hamlin, enterprising entrepreneurs both within Middletown and on the east side of the Connecticut River, constructed the Iron Works and in subsequent property purchases and sales established easements for "Forge Rights and Privileges" pertaining to the use of water flowing from the outlet of the Pond to power a water wheel. Today it would seem absurd, but in the 1740's East Hampton had one of the only iron works and forges in the Northeast. Iron discovered and mined in Salisbury was smelted into pig iron and carted by oxen 60 miles to be refined. Then, with the mechanical power from one or more water wheels, it employed its great hammer to prepare iron into workable thicknesses. This product was instrumental in the Middle Haddam shipbuilding industry and provided a laboratory where generations of East Hampton men could observe firsthand the process of metal making. This familiarity became crucial for the emerging bell industry of the 19th century. The Iron Works, located on Pocotopaug Stream near the shores of Pocotopaug Pond, is now part of the American Distilling Plant. The earliest land records refer to it as Iron Works Highway, later the Hebron Middle Haddam Turnpike, Smith Street and finally East High St. The original "forge privilege" does not appear to be granted by any political authority such as Middletown Selectmen. The Hall family built the iron works with operation passing to Abijah Hall and later his son up until 1810. A new forge was constructed in 1825 along with a scythe factory when Jedediah Barstow acquired the land and "old forge privileges."

When you don't have the right - Get Creative!

The Pocotopauge Water Power Company, incorporated in 1899, began an ambitious construction project to dam the Lake and provide controlled water power through a series of mill ponds along Pocotopaug Stream as it traversed through the village center. In 1899, no laws or regulations existed by which PWPC would be required to apply to construct or operate a dam or regulate and control the level of water in the Lake or water flow. The fact is that PWPC incorporation preceded the current State regulatory authority, DEEP or its predecessor, the Parks and Forest Commission by over a dozen years. So how did PWPC gain such control? The simple answer, they acted as if they owned the right! The more complex answer lies in several documents executed in 1903. The PWPC officers and trustees had commenced construction of the dam and apparently determined they possessed no such rights. In an ingenious plan, the officers obtained a number of 999 year leases were negotiated first with Lorenzo Rich and then a number of other Lake front property owners. Mr. Rich and the others, even though they did not possess the rights, granted the PWPC "full leave and liberty to erect and maintain and permanently establish their dam across the outlet to said Pocotopaug Lake, one foot higher than the present dam, to wit, as high as a certain bronze bolt set in a boulder near the middle of the present dam, and to flow water so much." Lacking any rights, the PWPC officers tried the next best thing. Secure from every Lake front property owner the above mentioned contractual provisions. Unfortunately, only about half the property owners entered into said leases. In the end, the Town, the Sears family, among others, didn't. Not to be stymied, the PWPC just pretended from the few leases executed to possess such rights and for well over a hundred years perpetuated the myth that the PWPC and Bevin family or Bevin Brothers Manufacturing Co. owned the rights to control the water in and flowing from the Lake.