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Keywords

settlementdefendanttrialwilleasementlegislative intent

defendantappealtrialwilleasementzoningregulation

Related Cases

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

Facts

William and Georgianna Hay, owners of a tourist facility at Cannon Beach, were enjoined by the Circuit Court from constructing fences or improvements in the dry-sand area between the sixteen-foot elevation contour line and the ordinary high tide line. The state asserted that the public has a superior right to use this area for recreational purposes, which has been recognized historically since the state's early settlement. The trial court found that the public had acquired an easement for recreational use of the dry-sand area, which is adjacent to the state-owned wet-sand area.

The dry-sand area in Oregon has been enjoyed by the general public as a recreational adjunct of the wet-sand or foreshore area since the beginning of the state's political history.

Issue

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

The issue is whether the state has the power to prevent the defendant landowners from enclosing the dry-sand area contained within the legal description of their ocean-front property.

Rule

The court applied the principle that the public has a right to use the dry-sand area for recreational purposes, which is supported by historical usage and legislative intent to preserve public access to the beaches.

The state asserts two theories: (1) the landowners' record title to the disputed area is encumbered by a superior right in the public to go upon and enjoy the land for recreational purposes; and (2) if the disputed area is not encumbered by the asserted public easement, then the state has power to prevent construction under zoning regulations made pursuant to ORS 390.640.

Analysis

The court determined that the public's long-standing use of the dry-sand area for recreational purposes established a customary right that the state is entitled to protect. The evidence showed that the public had continuously used the area without interruption, and the court found that the landowners' attempts to restrict access were inconsistent with the established public rights. The court also noted that the legislative framework supports the public's right to access these lands.

Because we hold that the trial court correctly found in favor of the state on the rights of the public in the dry-sand area, it follows that the state has an equitable right to protect the public in the enjoyment of those rights by causing the removal of fences and other obstacles.

Conclusion

The Supreme Court affirmed the trial court's decree, upholding the public's right to use the dry-sand area for recreational purposes and preventing the landowners from enclosing it.

For the foregoing reasons, the decree of the trial court is affirmed.

Who won?

The State of Oregon prevailed in this case, as the court upheld the public's right to access the dry-sand area for recreational use, which was supported by historical practices and legislative intent.

William and Georgianna Hay, the owners of a tourist facility at Cannon Beach, appeal from a decree which enjoins them from constructing fences or other improvements in the dry-sand area between the sixteen-foot elevation contour line and the ordinary high-tide line of the Pacific Ocean.

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