Judicial Takings and the Course Pursued

Abstract

ENERALLY, a line in the sand should not be crossed without considering the consequences. In Oregon, like most other states, the mean high tide line along the coast represented such a line, with private property on the upland side and public property toward the sea. In the case of State ex rel. Thornton v. Hay, however, the Oregon Supreme Court granted the public the right to cross that line for its enjoyment based on the English common law doctrine of custom, and, as a corollary, prohibited property owners from constructing any improvements on the dry sand beach between the mean high tide line and the vegetation line that might interfere with the public’s right of access. While the Oregon Supreme Court admitted that custom was doctrinally “unprecedented” in Oregon case law, the court looked to William Blackstone’s exposition of that doctrine and found, without any specific factual inquiry, that the entire Oregon coastline met the articulated requirements. Satisfied