PLSO May June 2019

27 Professional Land Surveyors of Oregon | www.plso.org Featured Article result in frequent transfers of property rights, making it more difficult for land use in a given area to remain constant for centuries. Judge Bleakley also ob- serves that custom was a product of a feudal system of government that does not exist in the United States. Gillies also cites an earlier Connecticut ruling to justify rejecting custom as the basis for a public way. In Graham v. Walk- er: 78 Conn. 130, 61 A. 98 (1905), the court concludes that the legal system and local conditions in Connecticut are inconsis- tent with those English institutions that give rise to rights by custom: The politi- cal and legal institutions of Connecticut have, from the first, differed in essential particulars from those of England. Feu- dalism never existed here. There were no manors or manorial rights. A record- ing systemwas early set up and has been consistently maintained, calculated to put on paper, for perpetual preservation and public knowledge, the sources of all titles to or incumbrances affecting real estate. Nor have we all the political subdivisions of lands which are found in England. An easement by custom may exist there in favor of the inhabitants of a city, county, town, hamlet, burgh, vill, manor, honour, or hundred…Most of these terms denote forms of communities that are unknown in this State. Another mixed message can be found in the U.S. Supreme Court decision over the Oregon dispute described in Stevens v. City of Cannon Beach: 510 U.S. 1207 (1994). Although the majority affirmed a right by custom in this instance, the dis- senting opinion by Justice Scalia provides some interesting arguments against the resurgence of custom as a popular jus- tification for public rights on otherwise private land. Scalia (joined in dissent by Justice O’Connor) questions the unsupported assumptions that all beaches in the state had been equally used since time imme- morial. He also emphasizes that any right by custom would need to be proved by specific evidence rather than by broad assumptions of historic use that are un- substantiated by testimony or historical research. Finally, he raises what may be the most fundamental question beneath the cur- rent popularity of custom in some states: Are courts recognizing a legitimate prop- erty right that has existed for many years, or are the parties resurrecting a dead doctrine to justify an uncompensated taking of private land for public use? “[A] State cannot be permitted to defeat the constitutional prohibition against tak- ing property without due process of law by the simple device of asserting retro- actively that the property it has taken never existed at all.” No more by judi- cial decree than by legislative fiat may a State transform private property into public property without compensation… if it cannot fairly be said that an Oregon doctrine of custom deprived Cannon Beach property owners of their rights to exclude others from the dry sand, then the decision now before us has effected an uncompensated taking. A significant part of the Scalia dissent fo- cuses on a perceived lack of rigor in the Oregon court when considering the ac- tual evidence of historic beach use. Regardless of the position taken by in- dividual states on rights established by custom, it is clearly established that the right should be proved by historical ac- counts, testimony and other evidence similar in nature to the evidence that might prove a prescriptive right in other circumstances. In addition, despite the majority decision handed down in Cannon Beach, there appears to be no mandate requiring all states to apply custom in like manner. For the vast majority of states that have taken no position on this issue to date, the question remains open.  x This article first appeared in Point of Beginning Magazine, July 2018; Vol. 43, No. 10, pg. 26-28. Kristopher Kline is president of 2Point Inc. More information on Kline’s continuing education courses can be found at www.2Point.net. Kline’s latest book, “How to Fix a Boundary Line,” is available exclusively from the author. Kline is a regular contributor to POB, authoring the “Un- mistakable Marks” column. He can be reached at [email protected]. Note: Neither the author nor publisher of this article intend this article to be considered a source of legal advice. The law can change over time and differs in various jurisdictions. The best source of legal counsel is an attorney admitted to the Bar in your State. Regardless of the position taken by individual states on rights established by custom, it is clearly established that the right should be proved by historical accounts, testimony and other evidence similar in nature to the evidence that might prove a prescriptive right in other circumstances. In addition, despite the majority decision handed down in Cannon Beach, there appears to be no mandate requiring all states to apply custom in like manner.