Hay v. Bruno, Civ. No. 68-300.

• Citation: 344 F. Supp. 286
• Decision Date: 06 June 1972
• Docket Number: Civ. No. 68-300.
• Parties: William G. HAY and Georgianna F. Hay, Plaintiffs, v. Thaddeus B. BRUNO et al., Defendants.
• Court: U.S. District Court — District of Oregon

344 F. Supp. 286

William G. HAY and Georgianna F. Hay, Plaintiffs, v. Thaddeus B. BRUNO et al., Defendants.

Civ. No. 68-300.

United States District Court, D. Oregon.

June 6, 1972.

Clifford B. Alterman, Kell & Alterman, Portland, Or., Rives, Bonyhadi, Hall & Epstein, Gerard K. Drummond and William C. Scott, Jr., Portland, Or., for plaintiffs.

Lee Johnson, Atty. Gen., George E. Rohde, Peter S. Herman, Frank C. McKinney, Philip J. Engelgau, Asst. Attys. Gen., Salem, Or., for defendants.

Before CARTER and KILKENNY, Circuit Judges, and SOLOMON, District Judge.

OPINION

SOLOMON, District Judge:

Plaintiffs challenge the constitutionality of Chapter 601, Oregon Laws 1969, codified as Oregon Revised Statutes (ORS) § 390.610 through § 390.690. They assert that the enforcements of these statutes, as interpreted by the Supreme Court of Oregon in State ex rel. Thornton v. Hay, 254 Or. 584, 462 P.2d 671 (1969), and as applied to them, would take their property without compensation in violation of their federally protected constitutional rights.

In this action before a three-judge court, convened pursuant to 28 U.S.C. §§ 2281 and 2284, plaintiffs seek to enjoin the enforcement of the statute. Both sides seek summary judgment.

Section 390.610(1), of the 1967 statute recites that the legislation seeks "to forever preserve and maintain the sovereignty of the state heretofore legally existing over the ocean shore 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."

To achieve this goal, ORS § 390. 610(2) declares:

"The Legislative Assembly recognizes that over the years the public has made frequent and uninterrupted use of the ocean shore and recognizes, further, that where such use has been legally sufficient to create rights or easements in the public through dedication, prescription, grant or otherwise, that it is in the public interest to protect and preserve such public rights or easements as a permanent part of Oregon's recreational resources."

ORS § 390.610(3) states:

"Accordingly, the Legislative Assembly hereby declares that all public rights or easements legally acquired in those lands described in subsection (2) of this section are confirmed and declared vested exclusively in the State of Oregon and shall be held and administered as state recreation areas."

To protect and administer the easements, the Legislature enacted ORS § 390.640. It prohibits the building of any structure on the land between the extreme low tide line and the 16-foot elevation line (this area will be called "the beach") unless a permit is issued for the structure.

Plaintiffs own a beachfront motel at Cannon Beach, Oregon. Their property includes land between the line of mean high tide and the visible line of vegetation, which is practically the same as the 16-foot line mentioned in the statute. This is the area in dispute and will be called "the dry sand area".

Plaintiffs' chain of title runs without exception or reservation from an 1893 federal patent. At least since 1892, the general public without requesting or obtaining permission from the adjacent property owners openly and continuously used for vehicular traffic and recreational purposes¹ all of the beach at Cannon Beach, including the dry sand area to which plaintiffs have record title.

Since 1892, the State of Oregon exercised authority over Cannon Beach by regulating the speed and use of vehicles, prohibiting the building of fires, the discharging of firearms and the dumping of rubbish and litter. The State has been spending public funds to police the area, and local groups have been providing lifeguard services on the beach.

In 1946, plaintiffs' predecessor in title dedicated an 8-foot passageway over the land so that the public would have access over plaintiffs' land to the beach. This passageway was used until 1965, when the City of Cannon Beach voluntarily vacated it.

The public generally assumed that the State owned in fee all of the land below the high water mark. This included the entire beach area, whose highest and best use was for recreational purposes.

When plaintiffs purchased the land, they knew of the long and extensive public recreational use of the entire beach at Cannon Beach.

In 1935, the United States Supreme Court in Borax Consolidated, Ltd. v. Los Angeles, 296 U.S. 10, 56 S.Ct. 23, 80 L. Ed. 9 (1935), held that the boundary of the state's fee ownership was the mean high tide line, which is neither the spring (highest) tide nor the neap (lowest high tide) but the mean of all the high tides determined over an 18.6 year period.

Both the property owners and the State recognize that their ownership rights are governed by this case. The State has primary rights to the wet sand area, which is the area seaward of the mean high tide line of the Pacific Ocean. This line is not a fixed or permanent one; it is subject to daily movement and semi-annually may shift easterly or westerly 200 feet or more. The other portion of the beach, that is, the dry sand area, belongs to the property owners, subject, however, to any rights which the public may have acquired.

In May, 1967, shortly before the effective date of ORS 390.610 to 390.690, plaintiffs, to exclude the public from using the dry sand area in front of their motel, constructed a fence.

In December, 1967, a storm washed away the fence. Two months later, plaintiffs, without applying for a permit, constructed a new fence enclosing the same portion of the beach.

In March, 1968, the State Highway Commission directed the plaintiffs to remove the fence. The letter stated that the beach was subject to a public easement and zoning restrictions under ORS §§ 390.610 and 390.640. Plaintiffs refused to remove the fence, and they filed this action for a three-judge court. Plaintiffs asked the Court to declare these statutes unconstitutional as applied to them and they also sought to enjoin the State from proceeding against them under these laws.

This Court stayed the proceedings to permit the State of Oregon to file an action in the State Court to determine the issues of Oregon property law. The State filed the action in the Circuit Court of Clatsop County, which Court held that the public had by prescription acquired a permanent easement for recreational purposes in this beach land.

On December 19, 1969, the Supreme Court of Oregon unanimously affirmed. State ex rel. Thornton v. Hay, supra. The Supreme Court opinion was by the then Justice Alfred T. Goodwin (now a Judge of the United States Court of Appeals for the Ninth Circuit), who stated that several Oregon decisions supported the trial court's decision "that the public can acquire easements in private land by long-continued user that is inconsistent with the owner's exclusive possession and enjoyment of his land." (254 Or. p. 592, 462 P.2d p. 675). The Court pointed out that both the courts and the legislative assembly in Oregon have recognized that the public can acquire prescriptive easements on private lands, at least for roads and highways. Although in Oregon there is a statutory 10-year prescriptive period, the Court said that there was continuous public use under a claim of right of the disputed land without the consent of the owners for more than 60 years.

The Supreme Court of Oregon was concerned that a decision based upon prescription might apply only to the specific tract before a court and that doubtful prescriptive cases would fill the courts of Oregon for years with tract-by-tract litigation. The Court did not affirm on the basis of prescription because it believed "that there is a better legal basis for affirming the decree. The most cogent basis for the decision in this case is the English doctrine of custom." (P. 595, 462 P.2d p. 676). The Court adopted the definition of custom from Bouvier's Law Dictionary, which reads, "such a usage as by common consent and uniform practice has become the law of the place, or of the subject matter to which it relates."

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