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State Ex Rel. Thornton v. Hay

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Property Law Keyed to Cribbet

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Bloomberg Law

Citation. 22 Ill.254 Or. 584, 462 P.2d 671 (1969)

Brief Fact Summary. Oregon sought to enjoin the Defendants, who were owners of a beachfront tourist facility, from building fences on areas of the beach, which were “dry sand” areas.

Synopsis of Rule of Law. The rule of custom, which arises by common consent and uniform practice that it becomes the law of the place, or of the subject matter to which it relates. The Defendants should be enjoined from constructing fences on beaches, which are customarily used by the public.

Facts. The State in this action has sought to enjoin the Defendants from constructing fences or barriers on “dry sands” areas of the beachfront, which is adjacent to Defendants’ property. The Defendants concede that all areas of the beach that lie seaward of the mean high tide line (“wet sands” area) are a state recreational area as defined by statute. The dispute centers on the sandy area between the edge of the vegetation line (falling generally on the sixteen foot elevation line) and the high tide line. This area is called the “dry sands” area of the beachfront. The Defendants assert a right to build fences or barriers from the edge of the vegetation line to the edge of the mean high tide line, which would effectively keep the public from entering those fenced areas. The lower court found for the state on the basis of a prescriptive easement, and permanently enjoined the Defendants from building any structures on the dry sands area of the beachfront. The Defendants appealed.

Issue. May the state limit the Defendants’ use of the dry sands area of the beachfront, which is adjacent to their property?
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