Paul Kelley fabricates reality to suit his own ends. The problem with fabrications however is they always unravel if you look closely at them. I’d like to unravel one of Kelley’s favorite fabrications right now- the one he likes to repeat occasionally about how Art Enos and Chester Chase managed to screw up the Clary Mill property and incidentally introduced the “mill privilege and flowage rights” language that had never existed before (or so he says). Kelley repeated this fabricated piece of reality in his 8 July 2013 closing brief on page 9 (emphasis added):

“In 1995, other substantial damage was done to Henry Clary’s vision and design of an integrated and functional hydrological unit. Then-mill owner Chase, acting in concert with the then-president of the Clary Lake Association (“CLA”) Arthur Enos, carved the historic mill property into pieces, including severance of the CLD from the historic mill parcel, sited on a marginal .13 acre of land. This ill-advised transaction invented and inserted the contentious phrase “mill privilege and flowage rights” both into the historic chain of title, and ultimately into these proceedings. That phrasing attempted transfer of a “mill privilege” which cannot be sold apart from a mill, and the sale of “flowage rights” which had not existed for decades.“

So he’s stating that the phrase “mill privilege and flowage rights” first appears in the chain in the deed from Chester Chase to Arthur Enos dated 3 February 1995 and recorded in Book 2056 Page 340. The actual verbiage he’s referring to is this:

“ALSO CONVEYING HEREWITH all the mill privilege and flowage rights contained in the hereinafter referenced deeds and any other mill privileges and flowage rights on Clary Lake however obtained by Chester H. Chase and his predecessors in title.”

The deed goes on to cite various source deeds including the one where Chester Chase got the mill property, by deed dated 10 July 1947 and recorded in Book 478 Page 78. Take a look at it.

The first parcel is:

“The Henry W. Clary Mill lot and privilege lying on both sides of the highway…”

Parcel one is followed by numerous other parcels, mostly meadow land, flowage, or flowage rights. The 13th and last parcel ends with the line:

…”and any and all other rights of flowage by the Clary Mill dam now or formerly belonging to the said Henry W. Clary or his estate, in whatever way the same may have been acquired.”

Now Kelley can perhaps argue that the discrete phrase “mill privilege and flowage rights” never occurred in the chain of title, but the real property interests these words refer to are clearly and distinctly included in the chain of title going back to the days of Henry Clary himself, and before. Furthermore, the deed to Chester Chase clearly refers to flowage rights associated with the Clary Mill dam. Kelley argues there are no flowage rights associated with the Clary Mill dam and that furthermore, flowage rights “had not existed for decades.” Anyone interested in owning the Clary Mill dam is going to want to own the flowage rights associated with it, don’t you think?

Kelley would no doubt argue that the phrase “Clary Mill dam” refers not to the Clary Lake dam, but the Clary millpond dam. How could it, when the millpond dam doesn’t actually flood any property?

You can look at the other deeds if you’re interested.