PLSO May June 2019

26 Vol. 42, No. 3 The Oregon Surveyor | Featured Article Texas and Florida The Texas court recently supplied an ex- cellent analysis of custom as a basis of public beach rights. Severance v. Patter- son: 370 S.W.3d 705 (2012) chronicles a dispute over the Open Beaches Act and purported public rights to a portion of West Beach on Galveston Island. This ruling recognizes the general legitimacy of public rights based on custom. How- ever, it intentionally avoids any illusion that this decision covers all coastal tracts within the state. Judge Wainwright em- phasizes the need for actual evidence of immemorial public use before accepting that a public right has been perfected on otherwise private dry-sand beaches. Re- search in this case delves into the early history of the area when it was still part of Spain and considers the rights that might have existed under Spanish and Mexican governments. While the Texas court concluded that cus- tom was a legitimate source of a public right of access, they intentionally stopped short of declaring any sort of “blanket cov- erage” for the entire coastline. Rather, any area where custom was invoked would be subject to the same careful scrutiny as was brought to bear in this case. Sev- erance ultimately ruled against a public right in the disputed area of West Beach, despite the potential for public access by customon other beaches within the state. The Florida court is another that has con- sistently accepted custom as the basis for access to dry-sand beach areas. In Trepanier v. County of Volusia: 965 So. 2d 276 (2007), the court cites previous lo- cal precedent to justify the right of public access to the dry-sand area for an entire county. The beach was recognized as a thoroughfare used by fishermen and recreational beach-goers: The court rec- ognized that the public may acquire a right to use the sandy area adjacent to the mean high tide line by custom when “the recreational use of the sandy area… has been ancient, reasonable, without in- terruption and free from dispute…” In this instance, the right established by custom is analogous to a negative ease- ment, insofar as the private owners are not allowed to use their lands in a man- ner inconsistent with the customary use of the beach by the public. Cases Critical of Custom Not all states have been so accepting of custom as the basis for public beach ac- cess. As mentioned above, the court of Maine rejected custom as a mechanism to create property rights in 2014. In an earlier decision, the New York court also rejected a purported right based on custom inGillies v. Orienta Beach Club: 289 N.Y.S. 733 (1935). It should be noted that the dispute in this case varied somewhat from the previous examples discussed. Rather than public use of the dry-sand area itself, the dispute concerned a pur- ported right to cross an upland area for access to Long Island Sound. This case highlights several factors that tend to negate any claim of a right based on custom. The history of Western settle- ment (and the application of English law) are a comparatively recent phenomenon in New York as compared to the centuries of occupation and use typically seen on the British Isles. This fact alone militates against any right based on actions that must extend beyond the span of memo- ry. Development practices in this country