State ex rel. Thornton v. Hay

Supreme Court of Oregon · 1969 · Property

462 P.2d 671 (1969)

Updated July 23, 2026

Propertycustombeach accessdry-sand areapublic easementforeshoremean high-tide linerecreational use

Facts

The defendants owned oceanfront property at Cannon Beach and sought to fence or improve the dry-sand area lying between the mean high-tide line and the vegetation line. The state claimed that the public had a superior right to use that dry-sand area for recreational purposes. The record showed that from the earliest settlement of Oregon, the general public had used the dry-sand area for picnics, warming fires, supervising children, gathering wood, and as an adjunct to use of the foreshore. The public's use had been continuous for more than sixty years, had not been interrupted by private owners, and the defendants conceded actual knowledge of the public's long-standing use.

Issue

Whether the state could prevent the owners of oceanfront property from fencing off the dry-sand area within their record title on the ground that the public had acquired a right to use that area for recreational purposes. More specifically, the question was whether the public's rights in the dry-sand area could be recognized as a matter of law.

Rule

In Oregon, the public may have a legally protected right to use the dry-sand area of the ocean beach for recreational purposes by virtue of custom when the use is ancient, exercised without interruption, peaceable, reasonable, certain, obligatory rather than optional with each owner, and not inconsistent with other law. Oregon law also does not preclude the creation of prescriptive easements in beach land for public recreational use, although custom is the preferred basis where the right concerns the coast more generally.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

Nora Whitfield buys an oceanfront parcel near Newport, Oregon, with deeded title extending to the mean high-tide line. For generations, the public has openly used the dry-sand strip between the tide line and the vegetation line for sitting, warming fires, and supervising children, and no owner had previously excluded beachgoers from that strip.

If Oregon seeks to enjoin Nora from fencing the dry-sand strip, which is the strongest basis under the majority opinion?

Explanation. The majority held that even where record title extends to the mean high-tide line, the dry-sand area may be burdened by a public recreational right established by custom. The court did not say the state owns all dry sand outright, did not rely on the foreshore statute for dry sand, and accepted that private title may extend to mean high tide.