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State Ex Rel. Thornton v. Hay

    Synopsis of Rule of Law. The public can acquire an easement in the land of another through either an easement by prescription or established custom.  An easement by prescription must be uninterrupted open, notorious, and hostile for the statutory period.  The elements of custom are (1) the custom must be ancient; (2) must be exercised without interruption; (3) use must be peaceable; (4) use must be appropriate to the land and community; ( 5) area must have visible boundaries; (6) obligatory; and (7) must not be inconsistent with other customs. 

    Facts. Defendants Hay owned a tourist facility on Cannon Beach and wanted to erect a fence around the beach area adjacent to their property for the enjoyment of their guests.  Specifically, they wanted to enclose the dry-sand area that is between the high-tide line and the vegetation line – the area where beach-goers typically lounge to escape the wet sand and tide.  The State sought a decree to enjoin defendants from building such fence.  The trial court ruled in favor of the State, finding that the public had acquired over the years an easement for recreational purposes to enjoy the dry-sand area.  The Supreme Court of Oregon affirmed under the doctrine of custom.

    Issue. Whether the State has the power to prevent landowners from enclosing the dry-sand area contained within the legal description of their ocean-front property.

    Held. No.  With the increase in private ocean-front resorts, owners desire to reserve for their paying guests the dry-sand portions of their deeded property.  However, the public can acquire an easement in the land of another by uninterrupted open, notorious, and hostile use and enjoyment of the land for the statutory period (10 years in Oregon).  The court, however, preferred to apply the doctrine of custom, which provides that where land has been used for so long by common consent and uniform practice then it becomes the law of the land.  The elements of custom are (1) the custom must be ancient; (2) must be exercised without interruption; (3) use must be peaceable; (4) use must be appropriate to the land and community; ( 5) area must have visible boundaries; (6) obligatory; and (7) must not be inconsistent with other customs.  In analyzing the doctrine of custom, the court pointed out that the dry-sand area is unique in that historically it has been used by the general public as part of their beach experience as an area to escape the advancing tide, from which to supervise children, to have picnics, and build fires.  Accordingly, the court determined that the public had established a right to use the dry-sand by custom and affirmed the trial court’s decision to enjoin the defendants from erecting a fence on their property.

    Discussion. The court pointed out that because so much of our law is the product of legislation, we must not lose sight of the importance of custom as a source of law.  The English law of customary rights developed in small villages at a time when most inhabitants never traveled more than a day’s walk from their birthplace during a lifetime.  However, this decision stands for the idea that a custom can have regional application and be enjoyed by a larger public than the inhabitants of a single village.  In this case, custom affects an entire state’s coastline.


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