PLSO May June 2019

25 Professional Land Surveyors of Oregon | www.plso.org Featured Article F or centuries, custom has been rec- ognized in the early English legal system as a source of law. In recent years, it has experienced a renaissance of sorts in the American courts for its possible effect on public access to oth- erwise privately owned dry-sand beach areas. While the doctrine in its original form could apply equally to waterfront or upland parcels, relevant U.S. deci- sions have focused almost exclusively on disputes over beach use. Some states have enthusiastically embraced the con- cept while others just as fervently reject the doctrine. The U.S. Supreme court has weighed in with a brief majority de- cision and an energetic dissent. Given the lack of any real preponderance of opinion, this article attempts to present both perspectives. Although some courts have referred to a servitude created in this manner as an “easement by custom,” the right lacks a recognizable dominant estate and tech- nically is a different type of servitude. Balancing this statement is the recognition by several courts that custom can create a servitude that acts as an easement in many respects. From a practical perspec- tive, the distinction between the two may be minimal. The basic requirements for the creation of a right by custom are not in dispute. The Oregon court was one early decision to consider the concept in Thornton v. Hay: 254 Ore. 584; 462 P.2d 671 (1969). In the course of his research, Judge Good- win leans heavily on the writings of Lord Blackstone. In his Commentaries, Black- stone included a list of elements to prove custom: • Use must be ancient • Right is exercised without interruption • Use is peaceable and free from dispute • Application of custom is reasonable and appropriate • Limits of the area are certain, marked by a visible delimiter • Right is obligatory (not exercised at the whim of each landowner) • Application of custom is consistent with other law More recently, theMaine decision Almeder v. Town of Kennebunkport: 106 A.3d 1099 (2014), provided a concise list of estab- lished English common law requirements for custom: Customwas developed in En- glish common law to account for usage that “lasted from time immemorial, with- out interruption and as a right,” and that was “reasonable, certain, peaceably en- joyed and consistent with other customs and laws.” This list is more concise than the detailed analysis from Thornton, but there are nomajor discrepancies between the forms laid out by these two courts. These two cases also highlight the division of opinion across the nation. Of the two examples cited above, the Oregon court (buttressed by a Federal Appellate Court decision) concluded that customwas the basis of a legitimate right for public use of dry-sand beach areas. In clear contrast, a similar dispute in the Maine court result- ed in complete rejection of the theory. Judge Gorman concluded that custom was a “largely dead doctrine” and was inapplicable to the conditions and legal history of that state. Although some courts have referred to a servitude created in this manner as an “easement by custom,” the right lacks a recognizable dominant estate and technically is a different type of servitude. Balancing this statement is the recognition by several courts that custom can create a servitude that acts as an easement in many respects. From a practical perspective, the distinction between the two may be minimal. The basic requirements for the creation of a right by custom are not in dispute. continues T