254 Or. 584, 462 P.2d 671 (1969)
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.1
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.2 The first European settlers on these shores found the aboriginal inhabitants using the foreshore for clam-digging and the dry-sand area for their cooking fires. The newcomers continued these customs after statehood.3 Thus, from the time of the earliest settlement to the present day, the general public has assumed that the dry-sand area was a part of the public beach, and the public has used the dry-sand area for picnics, gathering wood, building warming fires, and generally as a headquarters from which to supervise children or to range out over the foreshore as the tides advance and recede.4 In the Cannon Beach vicinity, state and local officers have policed the dry sand, and municipal sanitary crews have attempted to keep the area reasonably free from man-made litter.5
The dry-sand area is unstable in its seaward boundaries, unsafe during winter storms, and for the most part unfit for the construction of permanent structures.6 While the vegetation line remains relatively fixed, the western edge of the dry-sand area is subject to dramatic moves eastward or westward in response to erosion and accretion.7 Evidence in the trial below indicated that between April 1966 and August 1967 the seaward edge of the dry-sand area involved in this litigation moved westward 180 feet.8 At other points along the shore, the evidence showed, the seaward edge of the dry-sand area could move an equal distance to the east in a similar period of time.9 Recently, the scarcity of ocean-front building sites has attracted substantial private investments in resort facilities.10 Resort owners like these defendants now desire to reserve for their paying guests the recreational advantages that accrue to the dry-sand portions of their deeded property.11 Consequently, in 1967, public debate and political activity resulted in legislative attempts to resolve conflicts between public and private interests in the dry-sand area.12
The state concedes that the defendants' record title, which includes the dry-sand area, extends seaward to the ordinary or mean high-tide line.13 The trial court found that the public had acquired, over the years, an easement for recreational purposes to go upon and enjoy the dry-sand area, and that this easement was appurtenant to the wet-sand portion of the beach which is admittedly owned by the state and designated as a "state recreation area."14 The Hays appealed from the resulting decree.15
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?16
Under the doctrine of custom, a usage becomes the law of the place when it satisfies seven requisites drawn from Blackstone: it must be ancient so that the memory of man runneth not to the contrary, exercised without interruption, peaceable and free from dispute, reasonable, definite as to the land and the use, obligatory rather than optional with each landowner, and not repugnant to other customs or law; once established, the custom creates public rights that the state may protect by injunction even against record title holders.17
Yes. The rule applies directly to the facts of the Hay property at Cannon Beach because the dry-sand area has been used by the general public as a recreational adjunct of the wet-sand area since the beginning of the state's political history, with aboriginal inhabitants and European settlers alike using the foreshore for clam-digging and the dry-sand area for cooking fires, picnics, gathering wood, building warming fires, and supervising children as the tides advance and recede; this use continued without interruption by any upland owner, remained peaceable with municipal police preserving order when needed, proved reasonable given the land's instability, unsuitability for permanent structures, and dramatic shifts of up to 180 feet between 1966 and 1967, was definite because the area was bounded visibly by the vegetation line and the ordinary high-tide line, was obligatory because exercised as of right uniformly with other Oregon beaches and never questioned by upland owners so long as the public stayed on the dry sand, and was not repugnant to any other law or custom; therefore the custom attached to the specific tract owned by William and Georgianna Hay and authorized the state to enjoin fences or other improvements.18
The state possesses the power to prevent the defendant landowners from enclosing the dry-sand area contained within the legal description of their ocean-front property.19
Related opinions on this issue
Justice Denecke concurred in the decree.20 He rejected the majority's reliance on the English doctrine of customary rights. The facts in this case cannot be fitted into the outlines of that ancient doctrine.21
He grounded the public's right on four concrete factors present on the Oregon beaches including the Hay property.22 These factors are long usage by the public wherever the beach is used, a universal and long-held public belief in the right to such use, long and universal acquiescence by upland owners, and the extreme desirability to the public of access to the dry sands. He treated custom merely as an analogy.23
He drew support from precedents recognizing public rights in navigable waters regardless of bed ownership. Such precedents include the right to boat inland lakes in Luscher v. Reynolds and the right to fish in navigable rivers in Collins v. Gerhardt.24 He concluded that the combination of these factors creates a public right that continues even after title passes into private hands.25