State Ex Rel. Thornton v. Hay
462 P.2d 671 (1969)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
The public can acquire a recreational easement in the dry-sand areas of privately owned beaches based on the English common law doctrine of custom, where use has been ancient, uninterrupted, peaceable, reasonable, certain, obligatory, and not inconsistent with other laws.
Facts:
- William and Georgianna Hay owned a tourist facility located at Cannon Beach, Oregon.
- The legal description of the Hays' property included the 'dry-sand area,' defined as the land between the mean high-tide line and the visible line of vegetation.
- Since the earliest settlements in Oregon, the general public has continuously and uninterruptedly used the dry-sand area of the state's beaches for recreational purposes such as picnics, building fires, and general enjoyment.
- This public use was assumed to be a right and was never seriously challenged by private landowners until recently.
- The Hays attempted to construct fences and other improvements on the dry-sand portion of their property to reserve its use for their paying guests.
Procedural Posture:
- The State of Oregon, on behalf of the public, sued William and Georgianna Hay in an Oregon trial court.
- The State sought a decree enjoining the Hays from constructing fences or other improvements on the dry-sand area of their ocean-front property.
- The trial court found that the public had acquired an easement for recreational purposes and issued the injunction against the Hays.
- The Hays, as appellants, appealed the trial court's decree to the Supreme Court of Oregon.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does the state have the power to prevent private landowners from enclosing the dry-sand portion of their property when the public has historically and continuously used that area for recreational purposes?
Opinions:
Majority - Goodwin, J.
Yes. The state has the power to protect the public's recreational rights in the dry-sand area, which were acquired through the doctrine of custom. While theories of implied dedication or prescription could be considered, the doctrine of custom provides the most cogent basis for recognizing the public's rights. The court found that the public's use of Oregon's dry-sand beaches for recreation meets all seven of Blackstone's requirements for a legally enforceable custom: it is ancient, has been exercised without interruption, has been peaceable, is reasonable, is certain in its boundaries and use, is obligatory upon all landowners, and is not repugnant to other laws. Applying custom is preferable to prescription because it allows for a uniform ruling applicable to all ocean-front lands in the state, rather than requiring tract-by-tract litigation.
Concurring - Denecke, J.
Yes. While agreeing with the outcome, this opinion argues against relying on the ancient English doctrine of 'customary rights,' finding it an awkward fit. A better basis for the public's right is a combination of factors: (1) long-term public usage of the dry sands; (2) a universal and long-held public belief in the right to such use; (3) long and universal acquiescence by upland owners; and (4) the extreme desirability of this public right. This approach is analogous to the concept of 'jus publicum' (public right) which protects public use of navigable waters, a principle that should be flexible and adapt to changing public needs.
Analysis:
This landmark decision effectively secured public access to all dry-sand beaches in Oregon by reviving and applying the ancient English doctrine of custom. By choosing custom over prescription, the court avoided the need for piecemeal, property-by-property litigation and established a uniform, statewide rule. The ruling significantly limits the property rights of oceanfront landowners, creating a public recreational easement on their land without requiring compensation, based on the presumption that no owner ever had a legitimate expectation of exclusive use. This case serves as a powerful precedent for public trust and access rights over certain types of privately owned land with a history of public use.
Unlock the full brief for State Ex Rel. Thornton v. Hay