Citation. 22 Ill.254 Or. 584, 462 P.2d 671 (1969)
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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.
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.
May the state limit the Defendants’ use of the dry sands area of the beachfront, which is adjacent to their property?
Yes. Decree of trial court affirmed.
The court cited ample evidence of the historical public usage of the beachfront in Oregon, going back many years. The court recognized that in 1967, the legislature had enacted a statute which stated the public policy of Oregon to be that the public should have the free and uninterrupted use of the beaches and that the statute provided that the public had potentially created easements for access to the state recreation areas and that the public policy would be to preserve such easements. The court did find, however, that the legislature had no power to create easements, and that the question of whether the state had any power over the usage of dry sands areas to be a question of first impression.
The court considers the arguments of the parties for and against an easement by prescription and decides against such a theory. The court noted that the rights of trespass and ejection were not commonly available to property owners against the public. The court found the best basis for upholding the injunction against Defendants to be that the public had acquired the use of the dry sands areas of the beachfront through the English common law doctrine of custom.
The Court cited 1 Bouv.Law Dict., Rawle’s Third Revision, p. 742, as defining custom as “such a usage as by common consent and uniform practice has become the law of the place, or of the subject matter to which it relates.”
The Court cited seven elements of custom: 1) that the usage be ancient; 2) that the usage be without interruption; 3) that the usage be peaceful and free from dispute; 4) that the usage by reasonable; 5) that the usage be subject to visible boundaries; 6. that the usage be obligatory (that the individual landowners cannot decide whether to allow the public to use the dry sands area adjacent to his property); and 7) that the usage not be contrary to other laws or customs.
In support of the doctrine of custom, the court found that, although custom had not been previously recognized as a legal theory in Oregon, the rule is sufficiently applicable in this case. The justice system of Oregon is not considered “ancient,” but the court cited the usage of the beachfront areas by the Native Americans at the time the settlers first arrived, and that the traditions of keeping the beaches open to the public had not changed.
Concurrence. The concurring opinion agreed with the result, but would not have applied the doctrine of custom.
Custom is a doctrine that has not been adopted by all jurisdictions. The doctrine of custom provides the court a way around the elements of prescriptive easements, which may not have easily been proven in this case.