## Facts

- Owners of an oceanfront motel property in Cannon Beach, Oregon, planned to erect fences or other improvements on the “dry-sand” area of their beachfront property.
- The dry-sand area lay landward of the mean high-tide line and seaward of the line of upland vegetation (roughly the 16-foot elevation contour).
- The general public had long used Oregon’s dry-sand beach areas for recreation, and that use was widely known and largely unchallenged.
- The State Highway Commission, represented by the Attorney General and other state officials, sought to enjoin the owners from obstructing public use of the dry-sand area.
- The owners conceded the state’s authority and public rights as to the “wet-sand” foreshore seaward of the mean high-tide line; the dispute concerned only the privately titled dry-sand area.
- The trial court found a public right to use the dry sand and permanently enjoined the owners from constructing fences or improvements that would interfere with public use.
- The owners appealed from the injunction.

## Issues

1. Whether the state may prevent oceanfront owners from enclosing the dry-sand area within their legal descriptions to exclude the public.
2. Whether the public possesses a superior right to recreational use of the dry-sand area through a property-law doctrine enforceable against private title.
3. Whether the proper basis for such a public right is prescription or implied dedication, or the common-law doctrine of custom.

## Decision

- The Oregon Supreme Court affirmed the decree permanently enjoining the owners from fencing or otherwise obstructing public recreational use of the dry-sand area.
- The court held that the strongest basis for the public’s right was the English common-law doctrine of custom, incorporated into Oregon common law.
- The court declined to rest the result primarily on prescriptive easement or implied dedication theories, finding them ill-suited to coastwide public use by the general public.
- Because the customary public right existed as a matter of common law, the court did not need to rely on alternative regulatory or zoning authority to support the injunction.

## Legal Principles

- A customary right may arise when a practice becomes so long-standing, continuous, peaceable, and reasonable that it attains the force of law as to the land and use at issue.
- The doctrine of custom can limit incidents of private ownership where the public’s use meets traditional elements, including long duration, continuity, generality, peaceable exercise, reasonableness, and sufficient certainty as to the affected area.
- Continuous, open, and widely accepted public recreational use of Oregon’s oceanfront dry-sand beaches supported a coastwide customary right of public access for recreation.
- Legislative declarations of public policy favoring beach access may inform context, but creation of property interests burdening private land depends on judicial application of property law doctrines.
- Where a customary public recreational right exists, private owners retain title but may not exclude the public or erect barriers that substantially interfere with that right.

## Conclusion

The court upheld an injunction preventing oceanfront owners from fencing off the dry-sand area, ruling that longstanding, general, and reasonable public recreational use of Oregon’s dry-sand beaches had ripened into an enforceable customary right that restricts private exclusion.


State ex rel. Thornton v. Hay, 254 Or. 584, 462 P.2d 671 (Or. 1969)