State ex rel. Thornton v. Hay

• Decision Date: 19 December 1969
• Citation: 462 P.2d 671,254 Or. 584
• Parties: STATE of Oregon, ex rel. Robert Y. THORNTON, Attorney General of the State of Oregon; the State Highway Commission, composed of Glenn L. Jackson, Fred W. Hill and Thaddeus B. Bruno; and Forrest Cooper, Oregon State Highway Engineer, Respondents, v. William G. HAY and Georgianna F. Hay, husband and wife, doing business as Surfsand Motel, and Benjamin Franklin Federal Savings and Loan Association of Portland, a corporation, Appellants.
• Court: Oregon Supreme Court

Page 671

462 P.2d 671

254 Or. 584

STATE of Oregon, ex rel. Robert Y. THORNTON, Attorney General of the State of Oregon; the State Highway Commission, composed of Glenn L. Jackson, Fred W. Hill and Thaddeus B. Bruno; and Forrest Cooper, Oregon State Highway Engineer, Respondents, v. William G. HAY and Georgianna F. Hay, husband and wife doing business as Surfsand Motel, and Benjamin Franklin Federal Savings and Loan Association of Portland, a corporation, Appellants.

Supreme Court of Oregon.

Argued and Submitted Sept. 8, 1969.

Decided Dec. 19, 1969.

Gerard K. Drummond, Portland, argued the cuase for appellants. With him on the briefs were Kell & Alterman and Rives, Bonyhadi & Hall, Portland.

Peter S. Herman, Asst. Atty. Gen., Salem, argued the cause for respondents. With him on the supplemental answering brief was Lee Johnson, Atty. Gen., Salem. On the respondents' brief were Robert Y. Thornton, then Atty. Gen., and G. E. Rohde, Chief Counsel, F. C. McKinney, Asst. Counsel, and Philip J. Engelgau, Asst. Atty. Gen., Oregon State Highway Department, Salem.

C. Ray Johnson, George P. Winslow, Jr., and George P. Winslow, Tillamook, filed a brief as amici curiae.

Before PERRY, C.J., and McALLISTER, O'CONNELL, GOODWIN, DENECKE, and HOLMAN, JJ.

GOODWIN, Justice.

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.

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.

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.

The defendant landowners concede that the State Highway Commission has standing to represent the rights of the public in this litigation, ORS 390.620, and that all tideland lying seaward of the ordinary, or mean high-tide line is a state recreation area as defined in ORS 390.720. ¹

From the trial record, applicable statutes, and court decisions, certain terms and definitions have been extracted and will appear in this opinion. A short glossary follows:

ORS 390.720 refers to the 'ordinary' high-tide line, while other sources refer to the 'mean' high-tide line. For the purposes of this case the two lines will be considered to be the same. The mean hightide line in Oregon is fixed by the 1947 Supplement to the 1929 United States Coast and Geodetic Survey data.

The land area in dispute will be called the dry-sand area. This will be assumed to be the land lying between the line of mean high tide and the visible line of vegetation. ²

The vegetation line is the seaward edge of vegetation where the upland supports vegetation. It falls generally in the vicinity of the sixteen-foot-elevation contour line, but is not at all points necessarily identical with that line. Differences between the vegetation line and the sixteen-foot line are irrelevant for the purposes of this case.

The sixteen-foot line, which is an engineering line and not a line visible on the ground, is mentioned in ORS 390.640, and in the trial court's decree.

The extreme high-tide line and the highwater mark are mentioned in the record, but will be treated as identical with the vegetation line. While technical differences between extreme high tide and the highwater mark, and between both lines and the sixteen-foot line, might have legal significance in some other litigation, such differences, if any, have none in this case. We cite these variations in terminology only to point out that the cases and statutes relevant to the issues in this case, like the witnesses, have not a always used the same words to describe similar topographical features.

Below, or seaward of, the mean high-tide line, is the state-owned foreshore, or wet-sand area, in which the landowners in this case concede the public's paramount right, and concerning which there is no justiciable controversy.

The only issue in this case, as noted, is the power of the state to limit the record owner's use and enjoyment of the dry-sand area, by whatever boundaries the area may be described.

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.'

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.

It is not necessary, therefore, to consider whether ORS 390.640 would be constitutional if it were to be applied as a zoning regulation to lands upon which the public had not acquired an easement for recreational use.

In order to explain our reasons for affirming the trial court's decree, it is necessary to set out in some detail the historical facts which lead to our conclusion.

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. 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. 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. 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.

Perhaps one explanation for the evolution of the custom of the public to use the dry-sand area for recreational purposes is that the area could not be used conveniently by its owners for any other purpose. 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. 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. For example, 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. 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.

Until very recently, no question concerning the right of the public to enjoy the dry-sand area appears to have been brought before the courts of this state. The public's assumption that the dry sand as well as the foreshore was 'public property' had been reinforced by early judicial decisions. See Shively v. Bowlby, 152 U.S. 1, 14 S.Ct. 548, 38 L.Ed. 331 (1894), which affirmed Bowlby v. Shively, 22 Or. 410, 30 P. 154 (1892). These cases held that landowners claiming under federal patents owned seaward only to the 'high-water' line, a line that was then assumed to be the vegetation line. ³

In 1935, the United States Supreme Court held that a federal patent conveyed title to land farther seaward, to the mean hightide line. Borax Consolidated, Ltd. v. Los Angeles, 296 U.S. 10, 56 S.Ct. 23, 80 L.Ed. 9 (1935). While this decision may have expanded seaward the record ownership of upland landowners, it was apparently little noticed by Oregonians. In any event, the Borax decision had no discernible effect on the actual practices of Oregon beachgoers and upland property owners.

Recently, however, the scarcity of oceanfront building sites has attracted substantial private investments in resort facilities. 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. 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:

ORS 390.610 '(1) The Legislative Assembly hereby declares it is the public policy of the State of Oregon to forever preserve and maintain the sovereignty of the state heretofore existing over the seashore and ocean beaches of the state from the Columbia River on the North to the Oregon-California line on the South so that the public may have the free and uninterrupted use thereof.

'(2) The Legislative Assembly recognizes that over the years the public has made frequent and uninterrupted use of lands abutting, adjacent and contiguous to the public highways and state recreation areas and recognizes, further, that where such use has been sufficient to create easements in the public through dedication, prescription, grant or otherwise, that it is in the public interest to protect and preserve such public easements as a permanent part of Oregon's recreational resources.

'(3) Accordingly, the Legislative Assembly hereby declares that all public rights and easements in those lands described in subsec...