State Ex Rel. Thornton v. Hay

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

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Nature of the Case

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Facts

The Hays (D) were owners of oceanfront property which they used as a tourist facility. The portion of the beach which they attempted to enclose was part of the dry-sand area and was included in the legal description of their property. In attempting to enjoin the enclosure of the dry-sand area, the state (P) argues first that, although D does have title to the dry-sand area, such title is encumbered by a superior right in the public to use the area for recreational purposes; and that, even if the area is not encumbered, P has the power to prohibit any construction on the area pursuant to zoning regulations. The trial court found for P, holding that the public had acquired a prescriptive easement in the dry-sand area for recreational purposes.