State ex rel. Thornton v. Hay

254 Or. 584, 462 P.2d 671 (1969)



The first requirement of a custom, to be recognized as law, is that it must be ancient. "Long and general" usage is sufficient. The second requirement is that the right be exercised without interruption. A customary right need not be exercised continuously, but it must be exercised without an interruption caused by anyone possessing a paramount right. The third requirement is that the customary use be peaceable and free from dispute. The fourth requirement is that of reasonableness. The fifth requirement is certainty. The sixth requirement is that a custom must be obligatory. Finally, a custom must not be repugnant, or inconsistent, with other customs or with other law.


Appellants challenged a decree enjoining them from constructing any fences or improvements on the dry sand area of their beachfront property. The appellate court affirmed the decree.


Did the state have the power to prevent appellant landowners from enclosing the dry-sand area contained within the legal description of their ocean-front property?




Since prescription applied to specific pieces of property, the doctrine of custom supported the lower court's decree. The doctrine of custom as a source of law required that the custom be ancient or of long and general usage, that the right be exercised without interruption, the use be peaceable and free from dispute, the use be reasonable, certain, obligatory, and not repugnant or inconsistent with other customs or laws. The public's notorious custom of using the dry sand area of the beach met all the requirements of the doctrine.

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