FACTS: Appellants challenged a decree enjoining them from constructing any fences or improvements on the dry sand area of their beachfront property. On appeal, the court affirmed.
The court recognized that Or. Rev. Stat. § 390.610 provided for the creation of prescriptive easements in beachfront property for public use. However, the court found that 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 court found the public's notorious custom of using the dry sand area of the beach met all the requirements of the doctrine.
CONCLUSION: The court affirmed the decree and found the public's custom of using the dry sand area for public recreation mandated that it continue to be preserved for public use in accordance with statute.
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