I. INTRODUCTION

II. CONVENTIONAL COMMON-LAW APPROACHES TO BEACH ACCESS

A Easement by Prescription

B. Implied Dedication

1. Dedication by Acquiescence

2. Dedication by Adverse Use

III. CUSTOM AND PUBLIC BEACH ACCESS RIGHTS

A. Historical Background

1. The Influence of Blackstone

2. Custom in Early American Jurisprudence

B. Custom in Hawai'i: In re Ashford

C. Custom in Oregon: State ex rel. Thornton v. Hay

D. Custom in Florida: City of Daytona Beach v. Tona-Rama, Inc.

IV. THE PUBLIC TRUST DOCTRINE AND BEACH ACCESS RIGHTS

A. Historical Background

B. The New Jersey Cases

1. Molding and Extending: Borough of Neptune City v. Borough of Avon-by-the-Sea

2. Realizing: Matthews v. Bay Head Improvement Association

V. TONING UP TONA- RAMA AND CUSTOM WITH THE PUBLIC TRUST DOCTRINE

VI. CONCLUSION

As one drives across the Albee Road Bridge to Casey Key in the southwest Florida town of Nokomis, the public Nokomis Beach lies straight ahead at the foot of the bridge across South Casey Key Road.[1] Turning left onto the road, one may then proceed a half-mile toward the public North Jetty Beach at the southern tip of Casey Key, passing a modest motel and a dozen or so private homes of recent vintage along the way. Walking out onto the public beach at North Jetty, and then walking north back toward Nokomis Beach, one can see, on a sunny day, sunbathers clustered here and there on the dry sand. As is their custom, the sunbathers sit or lie well back from the tide line, generally in spots between the debris line left from an earlier high tide and the vegetation line, set back from which are the private homes passed earlier on the road. Neither the casual observer nor the sunbathers themselves would think they are doing anything wrong—they have simply fanned out along the dry sand, avoiding the more crowded dry-sand areas on the public beach itself. Nevertheless, any of the private homeowners could, if he or she so chose, bring an action in trespass against the sunbathers. For in Florida, as in most states, the property line for littoral owners extends not to the readily ascertainable vegetation line, but to the mean high tide line, whose exact location can only be determined with the help of a surveyor and a dozen and a half years of complicated hydrographic data.

The consequences of this right of littoral owners to eject individuals enjoying the beach are potentially severe in a state such as Florida, where the lure of the ocean attracts not only the state's traditional influx of tourists, but also a burgeoning residential population. During the twenty years from the 1970 U.S. Census to the 1990 U.S. Census, Florida's population doubled from 6.7 million to 12.9 million people.[2] Current estimates put Florida's population at 14.1 million people.[3] It is estimated that the Florida's population will grow by forty-three percent over the next twenty-five years, resulting in a population of 20.1 million people by the year 2020.[4] However, the law dealing with beach access in Florida has been frozen in time since 1974, when the Florida Supreme Court, in City of Daytona Beach v. Tona-Rama, Inc.,[5] stated in dictum that, "as a matter of custom," the public is entitled to use specific dry-sand areas for recreational purposes if the use "has been ancient, reasonable, without interruption and free from dispute."[6] This first, flawed attempt at articulating a longstanding public right in Florida's beaches has gone nowhere, however, in large part because of the Florida Supreme Court's affirmation—two months after its Tona-Rama decision—of an archaic standing requirement derived from nuisance law.[7] Moreover, as Justice Ervin pointed out in his Tona-Rama dissent, the majority took a very constricted view of the doctrine of custom, a broader view of which has been applied successfully in other states to guarantee state-wide dry sand access.[8] Together with the "ample precedent" of the public trust doctrine in Florida's sovereignty lands,[9] this broader view of custom would allow the judiciary to exercise its "positive and solemn duty as a last resort to protect the public's rights to the enjoyment and use of any of such lands."[10]

Part I of this comment provides the background necessary to consider the question of lateral beach access. Part II explores the more conventional common-law approaches to public beach access rights, including the doctrines of easement by prescription and implied dedication. Part III examines the doctrine of custom, from its expansive application in Oregon and Hawaii to the more limited approach applied by the Florida Supreme Court in Tona-Rama. Part IV discusses the public trust doctrine and its use as a means of vesting beach access rights in the public. Part V presents a workable, common-law model for guaranteeing state-wide lateral access[11] to the dry-sand areas of Florida's beaches. Finally, Part VI concludes that the Florida Supreme Court should, at its earliest opportunity, employ such a model to protect the longstanding right of the public to enjoy all of Florida's beaches.

The dry-sand area of a beach is that part between the mean high water mark and the vegetation line.[12] The area landward of the vegetation line is known as the upland.[13] The wet sand area between the high and low water marks is known as the foreshore or tideland.[14] Questions of beach access generally start with these concepts of high and low water marks, which were derived from the public trust doctrine.[15] The public trust doctrine posits that title to lands beneath navigable waters, including the tideland or foreshore, were held by the federal government and vested in a state upon its admission into the Union.[16] The state holds title to such lands in a trust for its people and can only dispose of them "when such parcels . . . are used in promoting of the interests of the public therein, or . . . without any substantial impairment of the public interest in the lands and waters remaining."[17] The states were thus left to define the contours of the doctrine within these limits.

The precise definition of the high water mark remained somewhat ambiguous well into the twentieth century. Under Roman civil law, the phrase "high water mark" meant the reach of the "greatest wave in winter."[18] By the early nineteenth century, the phrase came to mean, at common law, the land covered by "ordinary high water."[19] "Ordinary high water," according to this view, in turn meant the land covered by ordinary or neap tides, which occur when the moon is in its first and third quarters.[20] Still, the phrase was ambiguous, and landowners frequently thought of the "ordinary" high water mark as being coterminous with the vegetation line.[21] The U.S. Supreme Court weighed in on the subject in 1935 when, in Borax Consolidated v. City of Los Angeles,[22] it held that, for the purposes of determining the limit of the federal grant under the public trust doctrine, the high water mark was the mean high tide line, or the average elevation of all tides at any one place over an average of 18.6 years.[23] Although many states continue to use the phrase "ordinary high water mark," they frequently do so interchangeably with the phrase "mean high tide."[24]

With the exception of Hawaii, which recognizes the vegetation line as the seaward limit of a littoral owner's property,[25] eighteen of the twenty-three states that border on either the Atlantic or Pacific Oceans or the Gulf of Mexico view the mean high tide line as the seaward limit of private property. [26] Four states view the mean low tide line as the seaward limit, generally subject, consistent with early interpretations of the public trust doctrine, to narrowly proscribed public rights of navigation and fishing in the tidelands.[27] However, as beaches began to be used more for bathing than for fishing and navigation in the twentieth century,[28] a quandary developed: how could the public enjoy its right to bathe in the ocean without a concomitant right to use the adjoining dry sand?[29] Courts addressing this quandary have employed several common-law approaches.

A prescriptive easement is essentially the same as adverse possession, except that instead of posessing the land, the claimant merely makes some use of it.[30] It is generally defined as "the actual, open, notorious, hostile, 'continuous,' and 'exclusive' use of another's land."[31] The claimant will obtain the legal right to use the land if the use continues for the period of the statute of limitations.[32]

Two of the prescriptive elements—hostility and exclusivity—are problematic when it comes to applying prescription to questions of beach access. Hostile or adverse use of the land means that the use must be without the owner's pemission.[33] This requirement of hostility or adverse use has defeated more than one attempt at using the prescriptive easement theory to establish public beach access rights. For example, in the Tona-Rama case, the public's use of the beach surrounding the landowner's recreational pier was not adverse to the landowner because the owner depended upon the presence of the public to keep his tourist attraction operating.[34] The court stated that "such use is permissive rather than adverse [and] will never ripen into an easement."[35] Other courts, however, have found adverse use established if the public merely used the beach without asking permission and without objection from the landowner.[36]

Satisfying the element of exclusivity means showing that possession is not shared with the landowner.[37] It is out of this element that some jurisdictions have adopted the rule that the general public cannot prescribe.[38] The theory here is that a prescriptive easement is a personal right; "[i]f only a limited and definable number of persons have used the land, those persons may be able to claim a personal easement but not [one in] the public."[39] Some courts have justified the rule against public prescriptive easements by pointing out that for a landowner to stop potentially prescriptive use of property, he or she must bring an action in trespass, something one cannot do against the general public.[40] Jurisdictions that do allow the public to prescribe generally require an especially strong showing of adverse use.[41]

Because of the difficulty inherent in establishing a public prescriptive easement in coastal property, the theory is rarely successful. Most important for our purposes, however, is the fact that even if the doctrine were routinely successful, it applies only to individual tracts of property. Thus, the use of prescriptive easements to protect public rights in the beaches of a state would lead to inefficient, tract-by-tract litigation.[42]

Somewhat more successful has been the doctrine of implied dedication, which directly involves the public. Establishing dedication requires showing a private owner's offer to transfer land to the public, and the public's acceptance of that offer.[43] However, proof that the owner has invited or simply allowed the public to use the land for a long enough period will establish an offer of implied dedication.[44] While showing an owner's acquiescence traditionally has been essential to establishing an implied dedication, some courts also have allowed proof of the public's adverse use to essentially suffice for a showing of the owner's intent.[45]

1. Dedication by Acquiescence

The owner's intent is the foundation of establishing dedication by acquiescence.[46] The dedication is "affirmative in character, need not be by formal act or dedication, may be by parol, may result from the conduct of the owner of the lands dedicated, and may be manifested by written grant, affirmative acts or the permissive conduct of the dedicator."[47] Proof of the facts surrounding both the owner's intent and the public's necessary acceptance must be "clear, satisfactory and unequivocal."[48] The public must accept the owner's offer "within a reasonable time, but before the withdrawal of the offer, as the convenience of the public, or those who live upon adjacent lots, requires."[49] The public's use, however, regardless of its duration, is considered to be a license that is revocable at the pleasure of the owner, as long as the revocation impairs no private or public interest acquired by reason of the dedication.[50]

2. Dedication by Adverse Use

In Gion v. City of Santa Cruz,[51] the California Supreme Court held that a dedication also can be proved "by establishing open and continuous use by the public for the prescriptive period."[52] At issue in Gion were three privately owned shoreline lots that the public had used since 1900 for fishing, swimming, and picnicking.[53] The landowner posted signs on occasion indicating private ownership; however, the signs either blew away or were torn down.[54] The owner never asked anyone to leave the property and gave permission to use the land on the few occasions visitors requested permission.[55] Moreover, the city maintained the area in many respects, posting signs warning of hazards, paving a level area for parking, instituting erosion control measures, and collecting trash.[56]

The court found that there had been an implied dedication by adverse use of the property.[57] In contrast to dedication by acquiescence, where the focus is on the owner, "to prove dedication by adverse use, the inquiry shifts from the intent and activities of the owner to those of the public."[58] Thus, the dispositive question, the court stated, was whether the public had used the land for the prescriptive period with the full knowledge of the owner, but without permission and without any objection.[59] The court found that to be deemed adverse, the public's use did not have to involve a claim of right; the fact that the public had used the property for the prescriptive period without objection was sufficient to establish adversity.[60] To negate this finding of adversity, the owner must have shown that he had granted a license to the public to use his property or that he had made a genuine attempt to prevent the public's use. The court found the owner's attempts to exclude the public insufficient:

Whether an owner's efforts to halt public use are adequate in a particular case will turn on the means the owner uses in relation to the character of the property and the extent of public use. Although "No Trespassing" signs may be sufficient when only an occasional hiker traverses an isolated property, the same action cannot reasonably be expected to halt a continuous influx of beach users to an attractive seashore property. If the fee owner proves that he has made more than minimal and ineffectual efforts to exclude the public, then the trier of fact must decide whether the owner's activities have been adequate. If the owner has not attempted to halt public use in any significant way, however, it will be held as a matter of law that he intended to dedicate the property or an easement therein to the public, and evidence that the public used the property for the prescriptive period is sufficient to establish dedication.[61]

Notwithstanding the Gion court's theory of dedication by adverse use—which seems more of a looser version of easement by prescription—even dedication by acquiescence holds little promise as a means to litigate public beach access rights. Because dedications, at least in Florida, are revocable at will,[67] the public right in a particular beachfront property would depend upon the whim of the private landowner. Moreover, as with the prescriptive easement approach, the public right is establishing only in the tract of land before the court, which again raises the inefficient specter of tract-by-tract litigation.

Unlike the theories of easement by prescription and implied dedication, the doctrine of custom has been successfully applied in Hawaii[68] and Oregon[69] to garner the public a right to use the dry-sand areas of beaches throughout both states. Florida purports to allow use of the doctrine to establish the public's right;[70] however, the Tona-Rama court interpreted the doctrine in a much more constricted manner, giving it little practical use in the state.

1. The Influence of Blackstone

The use of custom as a common-law tool to secure rights in land is derived from of Sir William Blackstone's Commentaries on the Laws of England, which was published in 1765.[71] Because of its comprehensive and authoritative statement of the English common law at the time, and because many states have reception statutes incorporating the English common law as it existed at the time of the American Revolution, Blackstone's work has been highly influential among American courts discussing principles of the common law.[72]

Blackstone distinguished between two forms of custom. The first was the common law itself, which Blackstone saw as an articulation of the customs of the entire population of England.[73] The second form were customs that "affect only the inhabitants of particular districts."[74] It is this second form of custom to which those American courts employing the doctrine have looked.

Blackstone set forth six basic requirements that had to be met to prove a custom before a jury. First, the custom must "have been used so long, the memory of man runneth not to the contrary."[75] Second, the custom must have been observed without interruption.[76] Third, the custom "must have been peaceable, and acquiesced in; not subject to contention and dispute."[77] Fourth, the custom had to be certain or definite as to it manner of exercise.[78] Fifth, the custom must instill a sense of legal obligation in those who exercise it.[79] Finally, "[c]ustoms must be reasonable, or rather, taken negatively, they must not be unreasonable."[80]

The doctrine of custom in the British common law allowed the inhabitants of a particularly locality to retain their own rules concerning matters of inheritance[81] and payments of rent.[82] In addition, it afforded tenants of the local manor a legal basis for claim of right to gather wood, cut turf, and graze livestock on the manor commons.[83] By the nineteenth century, however, customary claims of right had disappeared for the most part, although customary claims to the use of land for roadways and recreation such as maypole dances, cricket matches, and horse races survived.[84]

2. Custom in Early American Jurisprudence

The early nineteenth century also saw a few American courts tentatively employing the doctrine of custom. Well before its revival in the 1960s, customary rights were recognized by courts in Maine, Massachusetts, and New Hampshire.[8]5 In Waters v. Lilley,[86] an 1826 trespass action in Massachusetts, the defendant claimed he had a customary right to enter the plaintiff's land to fish.[87] Although the Supreme Judicial Court of Massachusetts found that the right to fish was a profit à prendre rather than an easement, it held that customary claims had to be specially plead, implying that customary rights were recognized in Massachusetts.[88] A year later, the court explicitly recognized customary easements, although it found that the one claimed in the case at bar failed for a lack of definiteness.[89]

A few years later, in 1834, the New Hampshire Supreme Court decided Perley v. Langley, in which the defendant residents of a small village claimed a customary right to enter the plaintiff's property and take away sand. Although the court held that taking away sand was a profit à prendre that could not be claimed as a right held in common among the residents, it found that local inhabitants could establish a custom in another's land "as for a way—for liberty to play at rural sports—to draw nets on another's land—to pass free of toll—for a public landing place, &c." Following Perley were several cases dealing with the customary right of local inhabitants to enter shoreline properties and take away seaweed. In 1851, in Knowles v. Dow,[90] the defendant residents avoided the profit à prendre trap of Perley and pleaded that they had a customary right to use the plaintiff's property to store seaweed they had taken as they combed the beach for more, as opposed to pleading that they simply had a customary right to take the seaweed.[91] The jury had found for the defendants after being instructed by the trial judge on Blackstone's requisites for custom,[92] and the supreme court upheld the verdict. While testimony at trial revealed that the custom had only been in existence for slightly more than twenty years, the court found that the defendants' usage was sufficient to warrant the jury's finding of "an immemorial custom" because the usage was "unexplained and uncontradicted."[93] The court also rejected the plaintiff's contention that the custom was unreasonable, stating that "[a] custom injurious or prejudicial to the many, and beneficial only to some person, is repugnant to the law of reason. But the present custom is in fact in favor of the many, and the only party against whom it is set up, and by whom it is now opposed, is the lord of the manor."[94]

The Supreme Judicial Court of Maine, however, steadfastly distinguished profits à prendre from customary easements. In 1850, the Maine court was confronted with a fact pattern essentially similar to that of Knowles, yet with two-thousand-cord piles of wood replacing the small piles of seaweed.[95] The court held that even though the defendants were only using the plaintiff's property to store the wood taken from elsewhere, the use of the land was nonetheless a profit à prendre because it involved "the direct and continual appropriation of [the land] for the purposes of gain."[96] Other cases in Maine continued to maintain this sharp distinction.[97]

At about the same time as Knowles, courts in other states began rejecting any consideration of custom. Although some courts, in decisions with racist overtones, had earlier discarded consideration of the doctrine because they felt it impossible, given the short history of the United States, for a custom to have existed since time immemorial,[98] the rejections in the last half of the nineteenth century and the beginning of the twentieth focused on the fundamental incompatibility between American democracy and the English feudal system. In 1860, the Virginia Supreme Court cautioned that recognizing custom would allow a select few to make binding law, which would usurp the role of the people's "proper representatives."[99] The Connecticut Supreme Court was even more blunt in an 1905 decision, where it scathingly criticized the doctrine: "Feudalism never existed here. There were no manors or manorial rights. . . . Nor have we all the political subdivisions found in England[, such as] . . . a city, county, town, hamlet, burgh, vill, manor, honor, or hundred. Most of these terms denote communities that are unknown in this state."[100] By 1931, the Supreme Judicial Court of Maine was denying that it had ever recognized custom.[101]

It wasn't until the late 1960s that custom again appeared as a source of law in American courts.[102] In 1968, the Hawai'i Supreme Court decided In re Ashford.[103] The Ashfords were a couple who petitioned Hawai'i's land court to register title to shoreline land on the island of Molokai in Hawai'i.[104] The land in question was described in the royal patent originally granting the land as "running ma ke kai (along the sea)."[105] A private surveyor the Ashfords had hired put the seaward boundary of the land at the intersection of the shore and the horizontal plane of mean high water based upon data from the U.S. Coast and Geodectic Survey[106]—the method the U.S. Supreme Court had endorsed in Borax.[107] The State, however, contended that the seaward boundary—the ma ke kai—of the property was actually the "high water mark that is along the edge of vegetation or the line of debris left by the wash of waves during ordinary high tide," which was another twenty to thirty feet above the surveyor's line.[108] To support its position, the State presented kamaaina witnesses,[109] who testified to the location of the ma ke kai according to Hawai'ian tradition, custom, and usage.[110] The Ashfords' objection to the testimony of the kamaaina witnesses was sustained and the trial court found in favor of the Ashfords; but, on appeal by the State, the Hawai'i Supreme Court reversed.[111]

The court held that the seaward boundary of the Ashfords' property was "along the upper reaches of the wash of waves," a line that was evidenced by the edge of vegetation or the debris left by the waves.[112] Finding that the trial court had erred by sustaining the Ashfords' objection to testimony of the kamaaina witnesses, the supreme court explained that the Hawai'ian king who issued the royal patents in 1866 did "not hav[e] any knowledge of the data contained in the publications of the U.S. Coast and Geodectic Survey."[113] Rather, boundaries of Hawai'ian land were based on "ancient tradition, custom, and usage" and were traditionally located by reputation evidence from kamaainas.[114] Putting a fine point upon the matter, the court stated:

We do not find that data or information published and contained in the publications of the U.S. Coast and Geodectic Survey were relied upon by the kamaainas for the purpose of locating seaward boundaries in Hawaii. All of the matters contained in such publications were unknown to the ancient Hawaiians and foreign to the determination of boundaries in Hawaii. . . .

We find no reference concerning the location of boundaries in Hawaii , prior to 1866, to data contained in the U.S. Coast and Geodectic Survey or to high water mark as the intersection of the seashore with the horizontal plane of mean high water . . . .[115]

In a subsequent decision, County of Hawaii v. Sotomura,[117] the Hawai'i Supreme Court was faced with determining the precise location of the seaward boundary of an eroding coastal lot against which the State had exercised its right of eminent domain and for which the owners of the lot sought compensation.[118] The application through which title to the land had been registered in the land court in 1962—six years before the Ashford decision—specified that the seaward boundary ran "along high water mark."[119] The trial court, pursuant to Ashford, set the boundary at the debris line.[120] On appeal, the supreme court reversed, holding that in instances where there is both a debris line and a vegetation line, the seaward boundary is always the vegetation line.[121] The court reasoned that "while the debris line may change from day to day or from season to season, the vegetation line is a more permanent monument, its growth limited by the year's highest wash of the waves."[122] The landowners were not entitled to compensation for the land below the vegetation line, the court found, because the land had always belonged to the state.[123]

The landowners, however, took their challenge to federal district court.[124] The court held that the landowners had been deprived of procedural due process because the property below the vegetation line had been decreed as belonging to the state without the state asserting any claim to the land, and without giving the landowners a hearing on title.[125] Moreover, the court found, the supreme court's decision effected a taking of property without just compensation in violation of the Fourteenth Amendment.[126] The evidence at trial showed that the high water mark, as measured by the seaweed line, was the accepted method of determining the seaward boundary;[127] the supreme court's reliance upon Ashford, the court stated, was misguided because there had been no evidence introduced to establish either a common practice of locating the boundary at the vegetation line or a customary right of the public to use the parcel at issue.[128]

Despite the federal court's ruling, however, courts in Hawai'i continue to use custom to establish rights in property.[129] As the Hawai'i Supreme Court recently stated, "Hawaiian custom and usage have always been a part of the laws of this State."[130] However, even though there is some similarity to Blackstone's common-law requirements in the way custom is established in Hawai'i, the doctrine as applied in the state is arguably distinctively Hawai'ian, comprising a strand of the doctrine different in some respects from its common-law counterpart.[131] Thus, its use as a means of establishing statewide lateral access to the dry-sand areas of the state's beaches is obviously of limited influence outside of Hawai'i.

The use of custom to recognize the public right in beaches reached its zenith in 1969 when the Oregon Supreme Court decided State ex rel. Thornton v. Hay.[132] William and Georgianna Hay sought to build a fence and some other improvements on the dry-sand area "contained within the legal description of their ocean-front property," but were enjoined from doing so by the state.[133] The trial court found that the public had acquired a prescriptive easement to use the dry-sand area for recreational purposes.[134] The Oregon affirmed the trial court's findings;[135] however, after reviewing the doctrines of implied dedication and prescriptive easements,[136] the court stated that there was "a better legal basis for affirming the decree[:] . . . the English doctrine of custom."[137] Observing that prescriptive easements applied only to the specific tract of land at issue, which might clog the courts with tract-by-tract litigation, the court stated that "[a]n established custom, on the other hand, can be proven with reference to a larger region. Ocean-front lands from the northern to the southern border of the state ought to be treated uniformly."[138] In addition, the court found that custom was the better basis for its decision because of the "unique nature" of the dry-sand area, which it said had been "used by the public as public recreational land according to an unbroken custom running back in time as long as the land has been inhabited."[139]

The court then proceeded to go through Blackstone's requisites for custom. As to the requirement of use since time immemorial, the court observed that this was satisfied because the public had used the dry-sand area along the entire coast for as long as there had been a system of land tenure in the state.[140] Evidence from the case at bar satisfied the second requirement of continuity, because the public's use of the Hay's property had never been interrupted.[141] This also served to satisfy the third requirement of peaceableness.[142] The custom was reasonable, the court found, because the public use of the dry-sand area had always been appropriate to the nature of the land.[143] The requirement of certainty was satisfied because of the very nature of the land in question, which had visible boundaries.[144] Finally,[145] the requirement that the custom be legally obligatory was satisfied, the court stated, because evidence had been adduced that the public had always used both the dry-sand area in question and other dry-sand areas along the coast as a matter of right, and that this use had never been challenged by upland owners as long as the public stayed seaward of the vegetation line.[146]

The Thornton court rejected the two conventional arguments against employing custom, namely that its use in the United States is essentially unprecedented and that the country's history was too brief to rely upon an English doctrine that requires antiquity.[147] The court observed that, regardless of precedent, the custom of public use of the dry-sand areas met all of Blackstone's requisites;[148] moreover, Oregon was not the first American jurisdiction to recognize custom as a valid source of law.[149] As for the brevity of the country's history, the court stated that "this does not militate against the validity of a custom when the custom does in fact exist."[150] Furthermore, the court stated that if antiquity were the only basis for validating a custom, the fact that Native Americans had been using the dry-sand areas as public land long before European settlers would satisfy the requirement.[151]

The court explained why the custom applied statewide, and not just to the Hays' property, in a footnote:

The English law on customary rights grew up in a small island nation at a time when most inhabitants lived and dies without traveling more than a day's walk from their birthplace. Most of the customary rights recorded in the English cases are local in scope. The English had many cultural and language groups which eventually merged into a nation. After these groups developed their own unique customs, the unified nation recognized some of them as law. Some American scholars, looking at the vast geography of this continent and the freshness of its civilization, have concluded that there is no need to look to English customary rights as a source of legal rights in this country. Some of the generalizations drawn by the text writers from English cases would tend to limit customary rights to specific usages in English towns and villages. But it does not follow that a custom, established in fact, cannot have regional application and be enjoyed by a larger public than the inhabitants of a single village.[152]

Like the landowners in Sotomura, the Hays challenged the Thornton decision in federal district court.[15]4 Unlike Sotomura, however, the district court rejected the challenge.[155] In response to the Hays' contention that the Oregon Supreme Court had effected a sudden and unpredictable change in the state's property law, the court observed that the Hays knew when they purchased the property that it was customary for the public to use the dry-sand area.[156] Even if the Thornton decision was wrong and contradicted earlier decisions, the court observed, that fact did not constitute a violation of the Fourteenth Amendment.[157] Moreover, Thornton was consistent with decisions in other states that preserved public rights in the dry-sand areas.[158]

Oregon has continued to adhere to the doctrine of custom in preserving the public's right in the dry-sand areas of the state's beaches. However, the Oregon Supreme Court has limited the application of the doctrine to areas the abut the ocean.[159] Nevertheless, the supreme court has since affirmed Thornton in the face of a takings challenged based upon the U.S. Supreme Court's decision in Lucas v. South Carolina Coastal Council,[160] holding that Thornton did not create a new rule of law that was applied retroactively.[16]1 Since Thornton, both Texas and the Virgin Islands have recognized custom—albeit as codified by the legislature—as a source of law for public rights in beaches.[162] Florida has also acknowledged the letter of Thornton, if not its spirit.

Unlike virtually every other beach access case discussed in this Comment, the Florida Supreme Court's decision in City of Daytona Beach v. Tona-Rama, Inc.,[163] notwithstanding the title of the case, involved a dispute between two private parties.[164] McMillan and Wright, Inc., (McMillan) had owned shoreline property in Daytona Beach for over sixty-five years, on which they operated a recreational pier as a tourist attraction.[165] McMillan sought and obtained a building permit from the city to build an observation tower adjacent to the pier on the dry-sand area of the beach.[166] Tona-Rama, Inc., which operated an already-existing observation tower not far from McMillan's pier, sought to temporarily enjoin McMillan from constructing the new tower, and also sought a declaratory judgment that the public had acquired an exclusive prescriptive right to the dry-sand area of McMillan's land by virtue of the public's continuous use of the property for more than twenty years.[167] Although the temporary injunction was denied, after a hearing on twin motions for summary judgment, the trial court found for Tona-Rama and ordered McMillan to tear down the new tower within ninety days.[168] The district court of appeal affirmed the trial court's finding that the public had acquired a prescriptive right to the dry-sand area of McMillan's property and certified the case to the supreme court.[169]

The supreme court acknowledged that the public was able to acquire a prescriptive easement in the state's beaches but rejected the trial court's finding that the public had acquired a prescriptive right in McMillan's property.[170] To support such a finding, the court stated, evidence must be adduced that the public's use was adverse and inconsistent with the use of the owner.[171] Such was not the case here, the court found, because the public's use was consistent with McMillan's interests; the public was "the lifeblood of the pier."[172]

The court might well have ended its discussion there, but apparently felt compelled to continue on. The nature of Florida's beaches, the court stated, required that they be considered separately with respect to the effect of title.[173] The dry-sand area was of no value for any of the traditional uses of land, but instead "served as a thoroughfare and haven for fishermen and bathers, and as a place of recreation for the public."[174] That being so, the court declared that "[t]he interests and rights of the public to the full use of the beaches should be protected."[175] The court then noted that Oregon and Hawaii had applied the doctrine of custom to protect these interests and rights.[176] After quoting at length a discussion of custom from Herbert T. Tiffany's treatise Real Property[177]—one of the "text writers" to whose constricted view of the doctrine the Thornton court had alluded[178]—the court ventured forth with the following dictum:

If the recreational use of the sandy area adjacent to mean high tide has been ancient, reasonable, without interruption and free from dispute, such use, as a matter of custom, should not be interfered with by the owner. However, the owner may make any use of his property which is consistent with such public use and not calculated to interfere with the exercise of the right of the public to enjoy the dry sand area as a recreational adjunct of the wet sand or foreshore area.[179]

Three of the seven members of the court dissented. Justice Boyd, in his dissent, felt that the finding of a prescriptive easement should have been affirmed under the theory of other jurisdictions that find continuous use without permission and without objection to raise a presumption of adverse user.[183] Justice Boyd was primarily outraged that the tower would be allowed to stand,[184] however, and felt that prescription should be applied on an extremely limited basis or "countless thousands of beach lots would have questionable titles."[185]

Justice Ervin, on the other hand, believed that the prescriptive easement finding should have been affirmed as well.[186] However, he also stated that

a broader view of the law is applicable which if pronounced by this Court would afford more realistic protection of the public's rights not only in the subject beach area but to hundreds of miles of Florida beaches which have been used by Florida inhabitants since time immemorial.
I think the law of custom applies. . . .
What is overlooked by the majority is that as to prescriptive coastal areas, navigable waters, tide lands and sovereignty lands, the judiciary has a positive and solemn duty as a last resort to protect the public's rights to the enjoyment and use of any of such lands. There is ample precedent of this Court to afford this protection, including those relating to the inalienable trust doctrine in sovereignty lands and navigable areas.[187]

As discussed earlier,[192] under the public trust doctrine, the state owns lands underneath navigable waters, including the tidelands, holding them in trust for the public, which is entitled to use the tidelands for certain purposes. As enunciated in the U.S. Supreme Court's decision in Illinois Central Railroad v. Illinois,[193] the state cannot convey public trust lands unless it is in the public interest.[194] For the most of its long life, the doctrine has been used to preserve public rights of navigation and fishing; only in the twentieth century has it been used to preserve a public right of bathing.

The public trust doctrine has its origins in Roman civil law. Most authorities trace the doctrine back to the following passage in Justinian's Institutes:

The public use of the seashore . . . is a part of the law of nations, as is that of the sea itself; and therefore any person is at liberty to place on it a cottage, to which he may retreat, or to dry his nets there, and haul them from the sea; for the shores are said to be the property of no man, but are subject to the same law as the law of the sea itself, and the sand or ground underneath it.[195]

1. Molding and Extending: Borough of Neptune City v. Borough of Avon-by-the-Sea

It was not until the 1970s that the doctrine was again expanded, this time in the context of the public's exercise of its public trust rights being hindered. In Borough of Neptune City v. Borough of Avon-by-the-Sea,[202] an inland New Jersey municipality brought an action against the oceanfront town of Avon challenging the imposition of higher beach-access fees for nonresidents.[203] The plaintiffs attacked the municipal ordinance providing for the fees as lacking a rational basis;[204] however, the New Jersey Supreme Court decided the case on a different basis, "approach[ing] it from the more fundamental viewpoint of the modern meaning and application of the public trust doctrine."[205] After discussing the development of the doctrine in depth, the court struck down the ordinance, finding that the doctrine dictated that the state's beaches be accessible to all on equal terms and without preferential treatment.[20]6 The Avon court had no trouble finding that the doctrine was flexible enough to change with the times: "The public trust doctrine, like all common-law principles, should not be considered fixed or static, but should be molded and extended to meet changing conditions and needs of the public it was meant to benefit."[207]

2. Realizing: Matthews v. Bay Head Improvement Association

The Avon decision concerned a municipally owned dry-sand area. For the next twelve years in New Jersey, the question hung in the air whether the public trust doctrine applied to privately owned dry-sand areas. That question was answered in the affirmative by the New Jersey Supreme Court in Matthews v. Bay Head Improvement Association.[208]

Of the seventy-six parcels of land that bordered the beach in Bay Head, six were owned by the Bay Head Improvement Association (BHIA), a nonprofit corporation that operated and maintained both the beaches it owned and the dry sand-areas of many of the other beachfront lots in the borough.[209] Membership in BHIA was limited to residents of Bay Head.[210] BHIA provided lifeguards, cleaned the beaches, and stationed "beach police" at the dead-end street entrances to the beaches to check for membership badges.[211] Nonmembers were only allowed access to and use of the dry-sand areas between 5:30 p.m. and 10:00 a.m. during the summer and anytime between Labor Day and mid-June.[212]

Point Pleasant, a borough that neighbored Bay Head on the north, brought an action against both Bay Head itself and the BHIA, asserting that its inhabitants were being denied access to the oceanfront in Bay Head.[213] The case against Bay Head was dismissed because the borough did not own or control the beach.[214] A resident of Point Pleasant then joined the action as a plaintiff, New Jersey's public advocate joined as an intervenor, and Point Pleasant was eliminated as a plaintiff.[215] The trial court found for the defendants, the appellate division affirmed, and the plaintiffs appealed to the New Jersey Supreme Court.[216]

In an unanimous opinion, the supreme court held that the public trust doctrine did not just entitle the public to use of the foreshore, it also "assur[ed] the public of a feasible access route" to the foreshore[217] and allowed the public use of the dry-sand area "where . . . essential and reasonably necessary for the enjoyment of the ocean."[218] The right to pass across the upland and the dry-sand area was not unrestricted, the court stated; allowing "reasonable access to the sea" was sufficient to satisfy the public interest.[219] The court opined that reasonable enjoyment of the public's right in the foreshore was impossible without some enjoyment of the dry-sand area.[220] Enjoyment of the ocean required a place to rest and relax above the tide line. Indeed, the court stated, not allowing the public such a place would "seriously curtail and in many situations eliminate" the public's right in the foreshore.[221] The public was thus allowed the "essential and reasonably necessary" use of the dry-sand area subject to an accomodation of the owner's interests.[222] The precise dry-sand areas the public had the right to use in the state depended upon four factors: "[l]ocation of the dry sand area in relation to the foreshore, extent and availability of publicly[]owned upland sand area, nature and extent of the public demand, and usage of the upland sand land by the owner."[223] Applied to the instant case, the court's holding meant that BHIA had to open its membership and make daily and seasonal badges available to the public at large.[224] The record in the case, however, was such the court was unwilling to conclude what the public advocate had urged, namely that all privately owned beachfront property be opened to the public.[225]

All of the approaches to the public dry-sand access problem discussed thus far have had at least one flaw. The traditional approaches of implied dedication and easement by prescription require both difficult proof and apply only to individual parcels of land. Similarly, the nominally customary rights approach of Tona-Rama requires litigation on a tract-by-tract basis and also allows private owners to seal off vast stretches of coastline in newly developed areas from the public. Even as explained in Thornton and Ashford, the doctrine of custom seems to lack a solid rationale for its statewide application there. Finally, notwithstanding the willingness of the New Jersey Supreme Court to recognize the public's rights, the use of the public trust doctrine, while the strongest basis of all for statewide application, lacks an express rationale for allowing the public use of the dry-sand area. Moreover, the Matthews court bogged down its approach with a potentially litigious, "depends-on-the-circumstances" series of factors to be weighed.

Nevertheless, Thornton and Matthews—custom and the public trust doctrine—are not mutually exclusive approaches, as Justice Ervin and at least one commentator has recognized.[226] Combined and applied together, each makes up for the flaws of the other. In Florida, perhaps more than any other state in the Union, the use of such a combined approach is sorely needed. Since 1974, when Tona-Rama was decided, Florida has experienced an increase in the number of its residents equal to moving the entire population of New York City into the state. The coastal areas of Florida that were lightly populated at the time of Tona-Rama have experienced tremendous growth, as property values along and adjacent to the more heavily populated coastal areas have increased.[227] Public beach use in these newer areas, where it exists, is not "ancient" enough to satisfy Tona-Rama;[228] indeed, even if a prescriptive easement approach were applied in those newer areas where public use can be shown, it is doubtful whether it would meet the requirement of adverse user for the prescriptive period of twenty years.[229]

The U.S. Supreme Court's recent takings jurisprudence has betrayed an overwhelming pro-private property owner bias that dramatically hinders efforts to regulate or legislate in favor of public access to shoreline property.[230] The Florida Legislature, subject to heavy influence (if not capture) by powerful corporate and development-friendly lobbying forces in Tallahassee,[231] has also demonstrated that it favors private over public rights, particularly when it comes to property.[232] More than ever before in the state's history, however, the judiciary is needed to exercise its "positive and solemn duty . . . to protect the public's rights" in Florida's beaches. Tona-Rama, for all its faults, at least provides a building block, for it recognized that custom is—and has always been—a valid source of law in Florida. What is needed is a way to "ratchet up" the approach so it has the statewide effect of Thornton. It is conceivable that the Thornton court's rationale for its broader approach to custom might be employed, i.e., by explaining that differences between Britain and the United States support the notion that a regional, rather than a local, application of custom is warranted.[233] While a plausible, and perhaps even viable, notion, reliance on a sudden broadening of custom alone in Florida raises the possibility of more numerous and severe takings and due process challenges than might normally accompany a judicial exposition of public rights in Florida's dry-sand areas.

However, the public trust doctrine, long a source of protection for Florida's sovereignty lands and for public recreational rights in Florida's foreshore,[234] offers the sound rationale for recasting Tona-Rama in Thornton's statewide mold. Not only is its common-law pedigree lengthy and illustrious, but it has been elevated to state constitutional status.[235] Because it applies to all of the state's beaches, it provides a firm basis for supporting the theory that Floridians have a customary right to use the dry-sand areas throughout the state without engaging in a tract-by-tract series of factual determinations. This can be seen with considerable clarity if viewed from the point of view of the public trust doctrine itself. Simply put, the doctrine guarantees that Floridians have a right to use the foreshore for bathing, swimming, and other recreational uses everywhere in the state. The longstanding practice of not only Floridians, but all Americans, is that wherever they use the foreshore for swimming and bathing, they also—as a matter of custom—use the dry sand area as well. Thus, because the public trust doctrine allows the public to use the foreshore everywhere, custom allows them to use the dry-sand areas everywhere as well. Here, we have the missing linchpin from the Matthews approach. Instead of casting the public trust doctrine's concomitant use of the dry-sand area in terms of logical necessity, it is cast in terms of a customary right.[236] Indeed, this makes eminent sense, as it comports with Holmes' old saw that "[t]he life of the law has not been logic: it has been experience."[237] What this argument might be seen to possess an element of circularity, it more than makes up for it in terms of rationality.

The State of Florida, renowned throughout the world for its beautiful beaches, is at grave risk of having the bulk of this legacy forever shut off from use by the public. Notwithstanding the inalienable trust in the sovereignty lands, which gives the public the right to use the foreshore of all of the state's beaches, the Florida Supreme Court's current enunication of property law principles allows private landowners to effectively eliminate the enjoyment of this public right. The traditional common-law approaches to this problem, such the doctrines of prescriptive easement and implied dedication, are ineffective solutions. The same is true for the limited approach to the doctrine of custom announced by the Florida Supreme Court in Tona-Rama. The statewide approaches to custom and the public trust doctrine employed by Oregon and New Jersey respectively have been considerably more successful. However, the Oregon approach lacks a legally sound rationale for its statewide application, while the New Jersey approach lacks a legally sound rationale for expanding the public trust to include enjoyment of the dry-sand area. Nonetheless, when the two approaches are combined, they give one another what each lacks. The Florida Supreme Court should thus seriously consider revisiting its holding in Tona-Rama and injecting a strong dose of the public trust doctrine. The court should hold that because the public is guaranteed the right to use all of Florida's foreshore, and because the public customarily uses the dry-sand areas whereever it uses the foreshore, the public has a right to the enjoyment of the dry-sand areas of all of the state's beaches.

_______________________________

[1] The author has either lived or vacationed in the area described since 1984. Return to text.

[2] See U.S. Population by Official Census, 1790-1990, in THE WORLD ALMANAC AND BOOK OF FACTS 1995, at 377 (1994). Return to text.

[3] See Florida Over Growth Spurt, Study Says, TAMPA TRIB., Feb. 15, 1996, at 1. Return to text.

[4] See id. Return to text.

[5] 294 So. 2d 73 (Fla. 1974). Return to text.

[6] Id. at 78. Return to text.

[7] See United States Steel Corporation v. Save Sand Key, Inc., 303 So. 2d 9, 11-13 (Fla. 1974) (holding that standing to litigate public rights requires the allegation of a "special injury differing in kind from that suffered by the public generally"). Return to text.

[8] See Tona-Rama, 294 So. 2d at 81 (Ervin, J., dissenting). Return to text.

[9] See id. Return to text.

[10] Id. Return to text.

[11] This Comment does not address the slightly more problematic question of vertical beach access, or how the public gets to the dry-sand area. The vertical beach access problem entails questions of municipal involvement and statutory solutions, as well as the more complex takings analyses that accompany such questions, and thus is beyond the scope of this Comment. Return to text.

[12] See State ex rel. Thornton v. Hay, 462 P.2d 671, 672 (Or. 1969). Return to text.

[13] See DAVID J. BROWER, ACCESS TO THE NATION'S BEACHES: LEGAL AND PLANNING PERSPECTIVES 20 (1978). Return to text.

[14] See BLACK'S LAW DICTIONARY 649, 1482 (6th ed. 1990). Return to text.

[15] For a discussion of the background of the public trust doctrine and its use as a common-law method to allow public beach access, see infra Part IV. Return to text.

[16] See Shively v. Bowlby, 152 U.S. 1, 57 (1894). Return to text.

[17] Illinois Cent. R.R. v. Illinois, 146 U.S. 387, 453 (1892). Return to text.

[18] J. INST. 2.1.3. Return to text.

[19] JOSEPH K. ANGELL, THE RIGHT OF PROPERTY IN TIDE WATERS 52 (Fred B. Rothman & Co, 1983) (1828). Return to text.

[20] See Borax Consolidated v. City of Los Angeles, 296 U.S. 10, 23 (1935). Return to text.

[21] See State ex rel. Thornton v. Hay, 462 P.2d 671, 674 & n.3 (Or. 1969) (noting that at the time of the U.S. Supreme Court's decision in Shively v. Bowlby, 154 U.S. 1 (1894), the high water mark was assumed to be the vegetation line). Return to text.

[22] 296 U.S. 10 (1935). Return to text.

[23] See id. at 26-27. Return to text.

[24] See, e.g., Kruse v. Grokap, Inc., 349 So. 2d 788, 789 (Fla. 2d DCA 1977) ("The ordinary high water mark has been deemed synonymous with mean high tide."). Return to text.

[25] See County of Hawaii v. Sotomura, 517 P.2d 57, 61 (Haw. 1973) ("[T]he seaward boundary lies along 'the upper reaches of the wash of waves.' "). Return to text.

[26] Alabama: Mobile Transp. Co. v. City of Mobile, 30 So. 645, 646-47 (Ala. 1900) ("[W]here the tide ebbs and flows, grants of adjoining lands only extend to the ordinary high-tide line along the shore."); Alaska: Pankratz v. State Dep't of Highways, 652 P.2d 68, 73 (Alaska 1982) ("[The] state has title to land underlying navigable waters up to the mean high water mark."); California: Gion v. City of Santa Cruz, 465 P.2d 50, 58 (Cal. 1970) ("[There is] a presumption in favor of public ownership of land between high and low tide."); Connecticut: Leabo v. Leninski, 438 A.2d 1153, 1156 (Conn. 1981) ("[T]itle to the area between the mean low tide and mean high tide lines, covered by the daily flow of tides (the wet sand area, also called the foreshore or tideland), remains in the state."); Florida: Hayes v. Bowman, 91 So. 2d 795, 799 (Fla. 1957) ("[I]t is well-settled in Florida that the State holds title to lands under tidal navigable waters and the foreshore thereof (land between high and low water marks)."); Georgia: State v. Ashmore, 224 S.E.2d 334, 341 (Ga. 1976) ("[T]he State has fee simple title to the foreshore in all navigable tide-waters."); Louisiana: Davis Oil Co. v. Citrus Land Co., 563 So. 2d 401, 405 (La. Ct. App. 1990), rev'd on other grounds, 576 So. 2d 495 (La. 1991) ("[The] seashore . . . is a public thing, insusceptible of private ownership [and] extends . . . between high and low tide."); Maryland: Van Ruymbeke v. Patapsco Indus. Park, 276 A.2d 61, 64 (Md. 1971) ("The property owner owns to the mean high water mark."); Mississippi: Secretary of State v. Wiesenberg, 633 So. 2d 983, 988 (Miss. 1994) (recognizing "the federal grant in trust [to Mississippi] as including title to all land under tidewater, including the spaces between ordinary high and low water marks"); New Hampshire: In re Opinion of the Justices, 649 A.2d 604, 608 (N.H. 1994) ("[T]he public trust in tidewaters in this State extends landward to the high water mark . . . ."); New Jersey: Borough of Neptune City v. Borough of Avon-by-the-Sea, 294 A.2d 47, 49 (N.J. 1972) ("The tide-flowed land lying between the mean high and low water marks, as well as the ocean covered land seaward thereof to the state's boundary, is owned by the State in fee simple . . . ."); New York: Tiffany v. Town of Oyster Bay, 136 N.E. 224, 225 (N.Y. 1922) ("The foreshore, or land under the waters of the sea and its arms, between high and low water mark, is subject, first, to the jus publicum . . . ."); North Carolina: West v. Slick, 326 S.E.2d 601, 617 (N.C. 1985) ("In North Carolina private property fronting coastal water ends at the high-water mark and the property lying between the high-water mark and the low-water mark known as the 'foreshore' is the property of the State."); Oregon: Winston Bros. Co. v. State Tax Comm'n, 62 P.2d 7, 9 (Or. 1936) ("As to those lands lying between the high and low water mark, commonly referred to as tidelands, the state became the absolute owner of them [upon admission into the Union]."); Rhode Island: State v. Ibbison, 448 A.2d 728, 732 (R.I. 1982) ("We . . . apply the mean-high-tide line as the landward boundary of the shore for the purposes of the privileges guaranteed to the people of this state by our constitution."); South Carolina: State v. Hardee, 193 S.E.2d 497, 501 (S.C. 1972) ("In the absence of specific language, either in the deed or on the plat, showing that it was intended to go below high water mark, the portion of the land between high and low water mark remains in the State in trust for the benefit of the public."); Texas: Matcha v. Maddox, 711 S.W.2d 95, 99 (Tex. Ct. App. 1986) ("It is established that the line of mean high tide marks the boundary between private beachfront property and the state's submerged property."); Washington: Harkins v. Del Pozzi, 310 P.2d 532, 535 (Wash. 1957) ("At the time of statehood, the state of Washington acquired from the Federal government the ownership of the beds and shores of all navigable waters in the state, up to and including the line of ordinary high tide in water where the tide ebbs and flows."). Return to text.

[27] Delaware: State ex rel. Buckson v. Pennsylvania R.R. Co., 267 A.2d 455, 457 (Del. 1969) (agreeing with trial court that "a riparian owner of land fronting on navigable water holds title to the low water mark and, therefore, owns the foreshore"); Massachusetts: In re Opinion of the Justices, 313 N.E.2d 561, 565-66 (Mass. 1974) (affirming colonial ordinance that "extend[ed] private titles to encompass land as far as mean low water line or 100 rods from the mean high water line, whichever was the lesser measure"); Maine: Bell v. Town of Wells, 557 A.2d 168, 169 (Me. 1989) ("Long and firmly established rules of property law dictate that . . . oceanfront owners . . . hold title in fee to the intertidal land . . . ."); Virginia: Wheaton & Wisherd v. Doughty, 82 S.E. 94, 96 (Va. 1914) ("The limit or boundaries of the land [are] extended by the law down to low water mark."). Return to text.

[28] For a lyrical description of the lure of the ocean to bathers, see Justice Brown's opinion in White v. Hughes, 139 Fla. 54, 58-59, 190 So. 446, 448-49 (1939). Return to text.

[29] Practically speaking, many members of the public assume they have this right and exercise it notwithstanding any legal ramifications. This assumption is in large part the basis for applying the doctrine of custom to beach access problems. See discusssion infra Part III.C. Return to text.

[30] See ROGER A. CUNNINGHAM ET AL., THE LAW OF PROPERTY § 8.7, at 451 (2d ed. 1993). Return to text.

[31] Id. Professor Cunningham and his co-authors put the words "continuous" and "exclusive" in quotations because they have slightly different meanings in cases of prescription than in adverse possession. See id. Return to text.

[32] See id. Return to text.

[33] See id. § 8.7, at 452. Return to text.

[34] See 294 So. 2d at 78. For a more detailed discussion of the Tona-Rama case, see infra Part III.D. Return to text.

[35] Id. at 76. Return to text.

[36] See, e.g., Gion v. City of Santa Cruz, 465 P.2d 50, 56 (Cal. 1969) (finding that adverse use can be established by showing that "persons used the property believing the public had a right to such use" and "that the public has used the land without objection or interference"); Seaway Co. v. Attorney Gen., 375 S.W.2d 923, 936 (Tex. Ct. App. 1964) ("[T]he thing of significance is that whoever wanted to use [the beach] did so continuously for these many years when they wished to do so without asking permission and without protest from the land owners."). Return to text.

[37] See CUNNINGHAM ET AL., supra note 29, § 8.7, at 454. Return to text.

[38] See id. Return to text.

[39] Gion, 465 P.2d at 56. Return to text.

[40] See State ex rel. Haman v. Fox, 594 P.2d 1093, 1099:

If the owner of the property fails to eject the trespasser or enjoin the unauthorized use, after five years his right to do so will be barred. But as against whom would the owner be barred? Only those who had actually made open, notorious, continuous, uninterrupted use, under a claim of right, with the knowledge of the owner, for the five year period. Those persons who had not made such use could be enjoined from further interfering with the owner's superior rights.
. . . .
. . . The fact that hundreds of individuals have made use of respondents' property for the prescriptive period does not bar respondents from enjoining all future trespass to the property. Nor does the use of respondents' property by certain neighbors or friends or even total strangers accrue or inure to the benefit of others. We therefore hold that the "people of the State of Idaho" as distinguished from specific individuals cannot acquire prescriptive rights in and to private property absent some express statutory authority.

[41] See Thornton, 462 P.2d at 671; Tona-Rama, 294 So. 2d at 76-77. Return to text.

[42] See Thornton, 462 P.2d at 676 ("Strictly construed, prescription applies only to the specific tract of land before the court, and doubtful prescription cases could fill the courts for years with tract-by-tract litigation."). Return to text.

[43] See CUNNINGHAM ET AL., supra note 29, § 11.6, at 800. Return to text.

[44] See id. Return to text.

[45] See id. Return to text.

[46] See City of Miami Beach v. Miami Beach Improvement Co., 14 So. 2d 172, 175 (Fla. 1943). Return to text.

[47] Id. Return to text.

[48] Id. Return to text.

[49] Id. Return to text.

[50] See City of Palmetto v. Katsch, 98 So. 352, 353 (Fla. 1923). Return to text.

[51] 468 P.2d 50 (Cal. 1970). Return to text.

[52] Id. at 55. Return to text.

[53] See id. at 53. Return to text.

[54] See id. Return to text.

[55] See id. Return to text.

[56] See id. Return to text.

[57] See id. at 59. Return to text.

[58] Id. at 56. Return to text.

[59] See id. Return to text.

[60] See id. Return to text.

[61] Id. Return to text.

[62] See CUNNINGHAM ET AL., supra note 29, § 11.6, at 802. Return to text.

[63] See Coxe v. Water Works Board of the City of Birmingham, 261 So. 2d 12, 14 (Ala. 1972); In re Banning, 832 P.2d 724, 730 (Haw. 1992). Return to text.

[64] Banning, 832 P.2d at 730; see also State ex rel. Haman v. Fox, 594 P.2d 1093, 1100 (Idaho 1979) (also finding that Gion is inconsistent with state statute encouraging private owners to make lands available for public recreational use). Return to text.

[65] See Hollywood, Inc. v. Zinkil, 403 So. 2d 528, 537 (Fla. 4th DCA 1981) ("[O]nce the jury decided that the beach property had been dedicated and accepted . . . , the jury could not also find adverse possession unless it found actual or constructive notice by the [claimant]."). Return to text.

[66] The Delaware cases, however, all involve roads. See Hart v. Durr, 154 A.2d 898, 900 (Del. 1959) ("Twenty years of adverse user of the land by the public as a road or a street will constitute dedication of the land by the owner to the public."); see also H&H Brand Farms, Inc. v. Simpler, 1994 WL 374308, at *4 (Del. Ch. June 10, 1994) (finding that public roads can be created in three ways, including dedication by adverse use); Brosius Eliason Co. v. Dimondi, 1991 WL 242640, at *3 (Del. Ch. Nov. 15, 1991) (same). Return to text.

[67] See City of Palmetto v. Katsch, 98 So. 352, 353 (Fla. 1923). Return to text.

[68] See In re Ashford, 440 P.2d 76 (Haw. 1968). Return to text.

[69] See State ex rel. Thornton v. Hay, 462 P.2d 671 (Or. 1969). Return to text.

[70] See Tona-Rama, 294 So. 2d at 78. Return to text.

[71] WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND (1765). Return to text.

[72] See David J. Bederman, The Curious Resurrection of Custom: Beach Access and Judicial Takings, 96 COLUM. L. REV. 1375, 1382 (1996). Return to text.

[73] See 1 BLACKSTONE, supra note 70, at *72. Return to text.

[74] 1 id. at *74. Return to text.

[75] 1 id. at *76. Return to text.

[76] See 1 id. at *77 ("Any interruption would cause a temporary ceasing: the revival gives it a new beginning, which will be time within memory, and thereupon the custom will be void."). Blackstone specified, however, that interruption of the right voided the custom, not interruption of possession. See 1 id. Return to text.

[77] 1 id. According to Blackstone, customs owed their origin to "common consent"; proof of any dispute would thus show a lack of this consent. See 1 id. Return to text.

[78] See 1 id. at *78. Return to text.

[79] See 1 id. ("Custom, though established by consent, must be (when established) compulsory; and not left to the option of every man, whether he will use them or no."). Return to text.

[80] 1 id. at *77. Return to text.

[81] See 1 id. at *74-75. Return to text.

[82] See 2 id. at *97. Return to text.

[83] See 2 id. at *32-35. Return to text.

[84] See Carol Rose, The Comedy of the Commons: Custom, Commerce, and Inherently Public Property, 53 U. CHI. L. REV. 711, 740-41 (1986). Return to text.

[85] See Bederman, supra note 71, at 1401 (citing JOHN C. GRAY, THE RULE AGAINST PERPETUITIES § 585, at 563 (Roland Gray ed., 4th ed. 1942)). Return to text.

[86] 21 Mass. (4 Pick.) 145 (1826). Return to text.

[87] See id. Return to text.

[88] See id. at 148. Return to text.

[89] See Jones v. Percival. 22 Mass. (5 Pick.) 485, 486 (1827). Return to text.

[90] 22 N.H. 387 (1851). Return to text.

[91] See id. at 404. Return to text.

[92] See id. at 392-93. Return to text.

[93] Id. at 409. Return to text.

[94] Id. at 404. Return to text.

[95] See Littlefield v. Maxwell, 31 Me. 134, 139 (1850). Return to text.

[96] Id. at 142. Return to text.

[97] See, e.g., Hill v. Lord, 48 Me. 83, 99 (1861). Return to text.

[98] See, e.g., Ackerman v. Shelp, 8 N.J.L. 125, 130 (1825) (finding custom impossible because the "country was not discovered by civilized inhabitants"). Return to text.

[99] See Delaplane v. Crenshaw & Fisher, 56 Va. (15 Gratt.) 457, 475 (1860). Return to text.

[100] Graham v. Walker, 61 A. 98, 99 (Conn. 1905). Return to text.

[101] See Piper v. Voorhees, 155 A. 556, 559 (1931) ("In Maine, there never has been affirmation of the recognition of a right of way by custom."). Return to text.

[102] In 1959, the Texas Legislature passed the Open Beaches Act, TEX. NAT. RES. CODE ANN. §§ 61.011-.026 (West 1978 & Supp. 1996), which provides that:

[T]he public, individually and collectively, shall have the free and unrestricted right of ingress and egress to and from state-owned beaches bordering on the seaward shore of the Gulf of Mexico, or if the public has acquired a right of use or easement to or over an area by prescription, dedication, or has retained a right by virtue of a continuous right in the public, the public shall have the free and unrestricted right of ingress and egress to the larger area extending from the line of mean low tide to the line of vegetation bordering on the Gulf of Mexico.

Similarly, the Virgin Islands' Open Shoreline Act, V.I. CODE ANN. tit. 12, §§ 401-403 (1988), has been described by the Virgin Islands federal district court as codifying "the paramount right of the public to use the . . . beach as established by firmly, well-settled, long-standing custom." United States v. St. Thomas Beach Resorts, Inc., 386 F. Supp. 769, 772 (D.V.I. 1974). Return to text.

[103] 440 P.2d 76 (Haw. 1968). Return to text.

[104] See id. at 76. Return to text.

[105] See id. at 77. Return to text.

[106] See id. Return to text.

[107] See 296 U.S. at 26-27; see also supra text accompanying notes 21-22. Return to text.

[108] See Ashford, 440 P.2d at 77. Return to text.

[109] A kamaaina witness is "a person familiar from childhood with any locality." Id. at 77 n.2. Return to text.

[110] See id. at 77. Return to text.

[111] See id. Return to text.

[112] Id. Return to text.

[113] Id. Return to text.

[114] See id. Return to text.

[115] Id. at 78. Return to text.

[116] See Bederman, supra note 71, at 1429. Return to text.

[117] 517 P.2d 57 (Haw. 1973). Return to text.

[118] See id. at 59. Return to text.

[119] Id. The surveyor who set the boundary for the landowner's predecessors in title in 1959 testified at trial that he had placed the high water mark at the limu or seaweed line, which was the line marking "the growth of the limu along the seashore." Id. at 60. Return to text.

[120] See id. at 60. Return to text.

[121] See id. at 62. Return to text.

[122] Id. Return to text.

[123] See id. at 63. Return to text.

[124] See Sotomura v. County of Hawaii, 460 F.Supp. 473 (D. Haw. 1978). Return to text.

[125] See id. at 477. Return to text.

[126] See id. at 478. Return to text.

[127] See id. at 480-81. Return to text.

[128] See id. at 479-80. Return to text.

[129] See, e.g., Public Access Shoreline Hawaii v. Hawai'i County Planning Comm'n, 903 P.2d 1246, 1272 (Haw. 1995). Return to text.

[130] Id. Return to text.

[131] See Bederman, supra note 71, at 1427. Return to text.

[132] 462 P.2d 671 (Or. 1969). Return to text.

[133] Id. at 672. Return to text.

[134] See id. at 673. Return to text.

[135] See id. Return to text.

[136] See id. at 675-76. The court noted that the trial judge was faced with "a multitude of complex and sometimes overlapping precedents" as it considered which doctrine to apply. Id. at 675. Return to text.

[137] Id. at 676. Return to text.

[138] Id. Return to text.

[139] Id. at 676-77. Return to text.

[140] See id. at 677. Return to text.

[141] See id. Return to text.

[142] See id. Return to text.

[143] See id. Return to text.

[144] See id. Return to text.

[145] The court also considered a seventh requirement, "a custom must not be repugnant, or inconsistent, with other customs or other law." Id. However, repugnancy is conceptually indistinguishable from reasonableness, something the New Hampshire Supreme Court recognized over a century earlier in Knowles. See supra note 93 and accompanying text. Return to text.

[146] Thornton, 462 P.2d at 677. Return to text.

[147] See id. Return to text.

[148] See id. Return to text.

[149] See id. (citing Perley v. Langley, 7 N.H. 233 (1834)). Return to text.

[150] Id. at 678. Return to text.

[151] See id. This seems to be a direct rebuke to those early line of cases that rejected custom because the earlier, nonEuropean inhabitants of the United States were "not civilized." See, e.g., Ackerman v. Shelp, 8 N.J.L. 125, 130 (1825). Return to text.

[152] Thornton, 462 P.2d at 678 n.6 (citations omitted). Return to text.

[153] See id. at 678. Return to text.

[154] See Hay v. Bruno, 344 F. Supp. 286 (1972). Return to text.

[155] See id. at 290. Return to text.

[156] See id. at 289. Return to text.

[157] See id. (citing Patterson v. Colorado, 205 U.S. 454 (1907)). Return to text.

[158] See id. (citing Marks v. Whitney, 491 P.2d 374 (Cal. 1971)). Return to text.

[159] See McDonald v. Halvorson, 780 P.2d 714, 724 (finding that custom applies all beaches, sandy or otherwise "if they abut the ocean and if their public use has been consistent with the doctrine of custom as explained in [Thornton]"). Return to text.

[160] 505 U.S. 1003 (1992). Return to text.

[161] See Stevens v. City of Cannon Beach, 854 P.2d 449, 456 (Or. 1993). Return to text.

[162] See supra note 101. Return to text.

[163] 294 So. 2d 73 (Fla. 1974). Return to text.

[164] The city of Daytona Beach was a defendant in the case because it had issued a building permit to the co-defendant landowner. Return to text.

[165] Tona-Rama, 294 So. 2d at 74. Return to text.

[166] See id. Return to text.

[167] See id. Return to text.

[168] See id. at 74-75. Return to text.

[169] See id. at 75. Return to text.

[170] See id. at 77. Return to text.

[171] See id. The court conflated the doctrines of adverse possession and easement by prescription when it used the phrase "adverse possession" to describe one of the requirements for a prescriptive easement. See id. However, as discussed earlier, while the two doctrines are essentially similar, a prescriptive easement is based upon use, not possession. See supra notes 29-30 and accompanying text. Return to text.

[172] See Tona-Rama, 294 So. 2d at 77. Return to text.

[173] See id. Return to text.

[174] Id. Return to text.

[175] Id. Return to text.

[176] See id. at 78 (citing State ex rel. Thornton v. Hay, 462 P.2d 671 (Or. 1969); In re Ashford, 440 P.2d 76 (1968)). Return to text.

[177] 3 HERBERT T. TIFFANY, REAL PROPERTY § 935 (3d ed. 1939). Return to text.

[178] See supra text accompanying note 152. Return to text.

[179] Tona-Rama, 294 So. 2d at 78. The court apparently dispensed with Blackstone's traditional requirements of certainty and legal obligation. The Tiffany treatise mentions certainty, but does not freedom from dispute—which the Tona-Rama court filled in, perhaps from the discussion in Thornton—or legal obligation. See id. (quoting 3 TIFFANY, supra note 177, § 935). Return to text.

[180] See id. Return to text.

[181] See id. The court likened the owner's rights to the rights of a part-owner of a land-locked, nonnavigable lake. See id. Return to text.

[182] See id. Return to text.

[183] See id. at 79 (Boyd, J., dissenting). Return to text.

[184] See id. at 79-80.

If this building be permitted to stand, then the owner might well next decide to erect a gargantuan hotel on the property, and the adjoining property owners, demanding equal protection of the law, might then begin to construct a series of hotels along the waterfront—similar to the series that now exists along the East side of Collins Avenue in Miami Beach. This would form a concrete wall, effectively cutting off any view of the Atlantic Ocean from the public. A repetition of the concrete wall created by such buildings would be extremely detrimental to the people of this State and to our vital tourism industry.

Id. Return to text.

[185] Id. at 80. Return to text.

[186] See id. Return to text.

[187] Id. at 81 (citations omitted). Return to text.

[188] See supra note 184. Return to text.

[189] Tona-Rama, 294 So. 2d at 81 (Ervin, J., dissenting). Return to text.

[190] Id. Return to text.

[191] See FLA. CONST. art. X, § 11. Return to text.

[192] See supra notes 16-17 and accompanying text. Return to text.

[193] 146 U.S. 387 (1892). Return to text.

[194] See id. at 453. Return to text.

[195] J. INST. 2.1.5. Return to text.

[196] See Rose, supra note 83, at 728-29. Return to text.

[197] See Frank E. Maloney & Richard C. Ausness, The Use and Significance of the Mean High Water Line in Coastal Boundary Mapping, 53 N.C. L. REV. 185, 189-90 (1974). Return to text.

[198] See id. at 190. Return to text.

[199] See id. Return to text.

[200] Maine, Massachusetts, and Virginia are notable exceptions, allowing only public rights of fishing, fowling, and navigation in the tidelands, which are otherwise privately owned. See sources cited note 27. Return to text.

[201] One of the first recognitions that the public right in tidelands had expanded to include bathing came in the dissenting opinion to an early Florida decision concerning the public trust doctrine, State v. Black River Phosphate Co., 32 Fla. 82, 13 So. 640 (1893). "[The] public purposes or uses for which the land covered by water, and shores bounding the same, are held, so far as I can ascertain from the decisions of the courts, grow out of the use of water. These public rights are mentioned as relating to commerce and the rights of navigation, fishing, and bathing . . . ." 32 Fla. at 130, 13 So. at 655 (Mabry, J., dissenting). Return to text.

[202] 294 A.2d 47 (N.J. 1972). Return to text.

[203] See id. at 48-49. Return to text.

[204] See id. at 51. Return to text.

[205] Id. Return to text.

[206] See id. at 54. Return to text.

[207] Id. Return to text.

[208] 471 A.2d 355 (N.J. 1984). Return to text.

[209] See id. at 359. A number of owners leased the dry-sand areas of their property to BHIA. See id. Return to text.

[210] See id. Return to text.

[211] See id. Return to text.

[212] See id. Return to text.

[213] See id. at 358. Return to text.

[214] See id. Return to text.

[215] See id. Return to text.

[216] See id. Return to text.

[217] Id. at 364. Return to text.

[218] Id. at 365. Return to text.

[219] See id. at 364. Return to text.

[220] See id. at 365. Return to text.

[221] Id. Return to text.

[222] Id. Return to text.

[223] Id. Return to text.

[224] See id. at 368-69. Return to text.

[225] See id. at 369. However, the court warned that if BHIA or the property owners in Bay Head were to act in bad faith, it might "necessitate further adjudication of the public's claims in favor of the public trust on part or all of these or other privately[]owned upland dry sand lands depending upon the circumstances." Id. Return to text.

[226] See, e.g., Erin Pitts, Comment, The Public Trust Doctrine: A Tool for Ensuring Continued Public Use of Oregon's Beaches, 22 ENVTL. L. 731, 753 (1992) (urging use of public trust doctrine to augment doctrine of custom in Oregon). Return to text.

[227] For example, the population of Flagler County, the coastal county to the north of Daytona Beach and Brevard County, is expected to increase 118% by 2020. See Growth Spurt, supra note 3, at 1. "As Daytona Beach fills out, people are looking for places on the beach for less money and Flagler is the next available county to the north." Id. (quoting June Nogle, demographer, Bureau of Econ. and Bus. Research, Univ. of Fla.). Return to text.

[228] In his dissent in Tona-Rama, Justice Boyd indicated that regardless of whether the majority approach or a prescriptive easement is applied, it should be used against "[o]nly property having the same unique characteristics" as the Daytona Beach property at issue. 294 So. 2d at 80 (Boyd, J., dissenting). Return to text.

[229] See Farley v. Hiers, 668 So. 2d 248, 250 (Fla. 1st DCA 1996) (to establish prescriptive easement in Florida, use for prescriptive period of twenty years must be shown). Return to text.

[230] See, e.g., Dolan v. City of Tigard, 114 S. Ct. 2309 (1994); Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992); Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987). Return to text.

[231] See John D. McKinnon, Gallery of Hired Guns, FLA. TREND, Aug. 1, 1995, at 60 (profiling political lobbyists in Tallahassee who run thriving "political protection racket" of "government by and for the organized special interests" in absence of leadership from Florida Legislature). Return to text.

[232] See Bert J. Harris, Jr. Private Property Rights Protection Act, 1995 Fla. Laws ch. 95-181 (codified at FLA. STAT. § 70.001 (1995)). Return to text.

[233] See text accompanying note 152. Return to text.

[234] See Hayes v. Bowman, 91 So. 2d 795, 799 (Fla. 1957) ("[T]itle [to foreshore] is held in trust for the people for purposes of navigation, fishing, bathing, and similar uses."); White v. Hughes, 139 Fla. 54, 61, 190 So. 446, 449 (1939) ("The beach of the Atlantic Ocean between high and low-water marks is the property of this state, held in trust for the use of all the people of this state"); State ex rel. Ellis v. Gerbing, 56 Fla. 603, 611, 47 So. 353, 356 (1907) ("The rights of the people of the state in the navigable waters and the lands thereunder, including the shores or space between ordinary high and low water marks, in the state, are designated for the public welfare . . . ."). Return to text.

[235] See FLA. CONST. art X, § 11:

The title to lands under navigable waters, within the boundaries of the state, which have not been alienated, including beaches below mean high water lines, is held by the state, by virtue of its sovereignty, in trust for the people. Sale of such lands may be authorized by law, but only when it is in the public interest. Private use of portions of such lands may be authorized by law, but only when not contrary to the public interest.

[236] This also eliminates Matthews' four-factor approach to weighing the necessity of the use. For example, if there is only a ten-foot wide strip of dry-sand area in front of a private, beachfront home, it would not be customary for someone to set up a beach chair and blanket in front of the home. Return to text.

[237] Oliver Wendell Holmes, Book Notice, 14 AM. L. REV. 233, 234 (1880), reprinted in 3 THE COLLECTED WORKS OF JUSTICE HOLMES 103 (Sheldon M. Novick ed., 1995). Return to text.