Public Rights and the Nation's Shoreline

Three recent state court cases have further enlarged the public's right of use and access to the nation's ocean shoreline. These three decisions join a steadily developing body of state case and statutory law which over the past decade has afforded increasing protection to public rights, not only in recreational beaches, but in wetlands which nourish and protect shellfish, fish and wildlife as well. Benefitting from centuries-old doctrines which favored public ownership and use of coastal areas, the cases and statutes have gone on to expand and define the public interest in a manner consistent with the needs of a populous but environmentally conscious nation.

Because these cases focus upon unique land areas to which the public lays a special claim, the arguments used may possibly be applied to other areas of special public importance farther inland. The doctrines of dedication, prescription, the public trust and custom, while focused in the beach access cases on the very specific problem of the public's right to use the nation's recreational beaches, nevertheless appear through the recent cases to leave the flexibility and vitality necessary to evolving doctrines of environmental law.

In the first of the three cases, the New York Supreme Court (Nassau County) held that arecently enacted local law which excluded the general public from a municipal beach was unconstitutional. See Gewirtz v. City of Long Beach, 330 N.Y.S.2d 495, 2 ELR 20524 (Sup. Ct. Nassau Cty., March 24, 1972). By 1937 the City of Long Beach had acquired title to the beach area which formed its oceanfront boundary. With the land the city created Ocean Beach Park, which until 1970 was administered as a public beach, entry to which required the payment of a fee. In 1971 a local law embodying the intent of an earlier ordinance was passed which restricted the use of Ocean Beach Park to the residents of the City of Long Beach and their invited guests.

The court held that by its actions between 1937 and 1970 the city had quite clearly dedicated the beach to use by the public at large. By so doing, the city put itself in the position of holding the breach as parkland in public trust for the benefit of the public at large. Such a dedication to a public purpose, the court added, cannot be revoked except by express permission of the state legislature.

In the second case, the issue had progressed beyond the question of whether a seaside municipality could entirely exclude nonersidents from its beaches. In Borough of Neptune City v. Borough of Avon-by-the-Sea, 2 ELR 20520 (Sup. Ct. N.J. July 24, 1972), the parties apparently accepted as settled law a 1954 trial court holding that a municipality may not absolutely exclude nonresidents from the use of its dedicated beach. Brindley v. Lavalette, 33 N.J. Super. 344 (Law Div. 1954). The issue in the Avon case, therefore, focused upon the alleged right of Avon to charge discriminatory user fees to nonresidents. The Supreme Court of New Jersey held that the Borough of Avon-by-the-Sea had violated the public trust doctrine by charging nonresidents higher fees than residents for the use of its beach area.

Avon, in common with the City of Long Beach, is a seasonal, resort-oriented community which lies right on the oceanfront. Likewise, its boardwalk and beach have long been dedicated to public use and have become "in effect, a public park." Until 1970 Avon's fee-prescribing ordinance did not distinguish between residents and nonresidents. Residents and nonresidents alike could buy the seasonal, monthly or daily identification badges required for access to the breach area. But fee increases in 1970 had the effect of doubling the seasonal rate for nonresidents (from $10.00 to $20.00) and of substantially increasing the daily rate (from $1.00 and $1.25 to $1.50 and $2.25). These increases were intended to help meet the $50,000 annual deficit which the city alleged that it had incurred as a result of admitting the nonresidents.

Plaintiffs attacked the ordinance on several grounds, including a claim of a common law right of beach access which belonged to all citizens of the state. Accepting this argument as the basis for its decision, the court held that in essence plaintiffs were relying upon the public trust doctrine, which requires that the state and its subdivisions make areas held in trust available on an equal basis to the public at large. In imposing unequal access fees, the local ordinance made nonresidents' access to the beach proportionally more difficult and expensive. In so holding, the court implied that the public necessarily has the same trust rights in the city-owned dry sand area above mean high tide as it has in the tidal "wet sand" area. Furthermore, dicta in the case conclude that the legislature's power to remove lands from the public trust may be more limited than some earlier New Jersey case law had implied.

The most recent of the three cases is City of Daytona Beach v. Tona-Rama, Inc., 2 ELR 20511 (Dist. Ct. App. Fla. August 31, 1972), in which a prescriptive right of public recreational use of private land was established. The defendant corporation unsuccessfully sought to overturn a summary judgment which had held that the public had acquired a prescriptive recreational easement [2 ELR 10185] in beach property upon which defendant wanted to construct an observation tower. The stretch of beach, which was adjacent to pier recreational facilities owned by defendant, had been used by the public for 20 years as a recreational beach. Furthermore, the beach had been policed and maintained by the City for many years.

Relying upon Florida precedents of the 1940s and 1950s, the court had no trouble finding that the public had acquired a prescriptive easement in the area of beach between the bulkhead and mean high tide. 2 ELR 20512. Interestingly, the court does not discuss whether the tower would materially interfere with the public's continued use of the beach. If it would not, by forbidding construction upon the beach the court perhaps goes further than the courts in earlier beach access cases by not allowing joint use to continue. Indeed, valuable commercial uses for defendant's remaining fee are hard to imagine.¹

The Legal Theories upon which the Beach Access Cases Rely

The three recent cases rely upon three distinct but related doctrines of leading importance in the vindication of public rights in land. The New York case, a lower-court decision from which appeals may yet be taken, relies upon a theory of irrevocable dedication of parklike beach to public use. The New Jersey case, a precedent-setting decision of the state Supreme Court, relies upon the public trust doctrine. The Florida case relies upon a theory of prescriptive easement. Although two of the recent cases affect property owned by units of local government, they nevertheless stand with the Florida decision and with earlier decisions, also of fairly recent vintage, which strengthen and define public rights over privately owned shore property. Nor are dedication, prescription and the public trust the only legal techniques currently in use for protecting the public interest in the shoreline. Other decisions only a few years old rely upon related doctrines such as ancient custom which supplement the techniques mentioned above. Finally, statutes in two states and proposed legislation in Congress² create a rebuttable presumption in favor of public rights to enter and use ocean beaches. These statutes, while they create no new rights, shift the burden of proof in litigation over beach use to the party seeking to bar the public from entry.

Dedication

Dedication rests upon the landowner's offer to open land to general public use and upon acceptance of the offer by the public.³ Both offer and acceptance may be express or implied. Dedication, once completed, is revocable only by express action of the legislature. Both the owner's intent to offer and public acceptance may be implied from public use of the area. An owner's acquiescence in the public use, however expressed, is evidence of his intent to dedicate. Once completed, dedication cannot lapse because of non-use or adverse private possession.⁴

Dedication of public beaches was first successfully adjudicated in 1964. See Seaway Co. v. Attorney General, 375 S.W.2d 923 (Texas Civ. App. 1964). Prior to Seaway, beach access cases were usually unsuccessful because plaintiffs could not overcome a presumption that the owner had permitted public use under an implied revocable license. This presumption, which has often been applied to open, untended and infrequently used lands such as forests, was first reversed for public roadways, because of their definite character, frequent use and public importance. For much the same reasons, beaches now are beginning to follow suit.

Certainly the New York case presented no special problems for the doctrine. The clearly defined, well-tended, popular beach was much more like a public roadway than a forest. The decision simply required the dedication of publicly owned land to the widest possible public use, over an attempt by the City of Long Beach to exclude the nonresident public from use of the beach. Thus the case does not discuss the interesting, tougher issues raised by the earlier beach dedication cases involving private landowners. Nor does the case have to rely upon a theory of implied dedication, as did the earlier cases (discussed infra), because the city's intent to dedicate was plain.

It is difficult to conceive of any method better calculated to express the intent to dedicate its ocean beach front property to public use as a public park than the Local Law which the City enacted in 1936 and the implementing ordinance which it thereafter adopted. These actions by the City manifested unequivocally an intention to dedicate the municipally-owned property to public use as public park. 2 ELR 20527.

Nevertheless, the court does reaffirm three principles of law worthy of repetition here. First, after correctly stating the elements necessary to establish a dedication as offer and acceptance, the court goes on to say:

Reason suggests that when it is the municipality which is making the dedication, the element of acceptance really is not required, or if the element of acceptance is [2 ELR 10186] to be insisted upon, it may be implied from the very act of dedication by the municipality.

Second, the court affirms the settled law that once a dedication has been completed, it is irrevocable and applies equally to completed dedications by governmental entities and municipalities. Third, the court stresses that public park property, such as the court found Ocean Beach Parkto be, cannot be put to other uses or sold without the plainest express legislative permission.

When the City dedicated this property to use as a public park and thereafter devoted it to the use of the public at large for upwards of thirty years, it put itself in the position of holding that property subject to a public trust for the benefit of the public at large. Public parks occupy a special position insofar as the public at large are concerned, and this is borne out by numerous expressions to that effect found in the decisions of this state. [citations omitted] Attempts to divert public park property to other uses have often been restrained …. 2 ELR 20528.

The view that land which had been dedicated to use as a public park may not be diverted to another use or alienated finds support in the decisions of other states. (See Douglass v. City Council of Montgomery, 118 Ala. 599, 24 So. 745; Raynor v. City of Cheyenne, 178 P.2d 115 [Wyo. 1947]). 2 ELR 20528.

The policy of judicial protection of parklands, expressed in such foreceful terms by the court, is a welcome restatement of a useful principle of state environmental law. It stands together with the federal Parklands Statutes [49 U.S.C. 1653(f) (Supp. V); 23 U.S.C. § 138 (Supp. V)], interpreted in Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 1 ELR 20110 (U.S. 1971), as an important buttress against further encroachments upon public parklands.⁵

Gewirtz involved express dedication by a municipality. The earlier cases involved implied dedication by private landowners. In Seaway Co. v. Attorney General, 375 S.W.2d 925 (Texas Civ. App. 1964), the Seaway Company, which owned oceanfront property on the east beach of Galveston Island, erected three barriers which extended from the vegetation line down past the line of mean high tide, thus excluding the public from the dry sand beach. For at least a century before Seaway erected the barriers in 1958, the public had enjoyed free and full use of both the "dry" and tidal sections of the beach for travel and recreation. The court held that the public had acquired an easement for use by implied common law dedication of the area between the vegetation line and mean high tide. 375 S.W.2d 925, 935.⁶

The court's discussion of the owner's offer to dedicate, which depends upon his intent to do so, makes clear that it is the owner's behavior which is determinative, not his attitude or actual intent. He may dedicate his property in spite of himself:

The intent on the part of the owner, however, is not a secret intent, but is that expressed by visible conduct and open acts of the owner. If the open and known acts are of such a nature as to induce the belief that the owner intended to dedicate the way to the public and individuals act on such conduct, proceed as if there had been in fact a dedication and acquire rights that would be lost if the owner were allowed to reclaim the land, then the law will not permit him to assert that there was no intent to dedicate, no matter what may have been his secret intent. The act of throwing open property to the public use, without any other formality, is sufficient to establish the fact of dedication to the public ….

… the thing of significance is that whoever wanted to use it did so continuously for these many years when they wished to do so without asking permission and without protest from the landowners. 375 S.W.2d 923, 936.

Thus the crux of the test for dedication does appear to reduce to a simple test of unchallenged adverse public use, which is the test for a prescriptive easement. Dedication has at least traditionally implied something more. Perhaps the court was seeking to emphasize the public nature of the easement taken; prescriptive easements may be acquired by anyone, whereas the public only may acquire easements by dedication. In this case the actual classification made little difference, since the court held that the easement had also been established by prescription; however, the difference in some states may be crucial — e.g., in California, where the public may not acquire an easement by prescription. See People v. Sayig, 101 Cal. App. 2d 890, 226 P.2d 702 (1st Dist. 1951).

The roadway cases, safe legal precedents for the court to apply, were clearly in the forefront of the court's mind. See, e.g., 375 S.W.2d 923, 939. The facts of the case made the analogy easy to complete, the beach having been used as a public highway, post road and stagecoach route for over a century. The state had maintained the beach much as it would a highway for a quarter-century by repairing washouts, posting directions and issuing traffic tickets. Nevertheless, the court was not content to rest its decision on the roadway cases; it specifically included a variety of recreational uses as establishing the dedication. Such uses, ranging as they did over considerable widths of beach, still were confined [2 ELR 10187] to a relatively narrow strip by the ocean on one side and by the less appealing grass and scrub on the other. Hence definiteness, necessary to the definition of the area covered by the easement, was not difficult to achieve.

The Seaway case was litigated in the context of the Texas Open Beaches Act,⁷ which has been called "the fundamental legislative statement of the rights of the public on the beaches of Texas."⁸ The court in the Seaway case, however, made use of the statute only for the express authority which it provides for the Attorney General to bring such an action and for the definitions of "beach" and "line of vegetation" which it contains. The Act's most interesting provisions was not used. Section 2 of the Act creates a prima facie presumption that where property lies between the line of vegetation and mean low tide, the title of oceanfront owners does not include the right to exclude the public from using the area for access to the sea. Thus by operation of statute the burden of proof was shifted from the public seeking to assert rights of use and access to the oceanfront owner.⁹

The Act specifically disclaims any intention to affect the title to land (Sec. 1), ostensibly because to do so would be unconstitutional as a taking without due process of law. Thus the Attorney General in the Seaway case relied upon existing public rights, not upon rights created by the Open Beaches Act. The presumptions that the landowner had no right to exclude the public and that the public has a prescriptive right would have been relied upon only if the state had not been able so easily to prove an existing right in the public.¹⁰

Nevertheless, the Act unmistakably influenced the decision in the Seaway case by establishing as the public policy of Texas that its citizens should have the free and unrestricted right of access to state-owned beaches. As the court says:

[The Act] made it an offense against such public policy for anyone to obstruct the way of ingress and egress or the use of the beaches. 375 S.W.2d 923, 925.

The impact of policy declarations, even where they do not as yet confer specifically enforceable rights, cannot be underestimated. Consider the impact of the National Environmental Policy Act and litigation under it, the subject of frequent ELR commentary.

Such an impact may also be ascribed to similar state legislation in Oregon which influenced the trial court decisions in State of Oregon v. %fultz, No. 14-601 (Ore. Cir. Ct. 1968), and in State ex rel. Thornton v. Hay, No. 27-102 (Ore. Cir. Ct. 1969) (unreported but set out in full in Appellant's brief on appeal), aff'd on other grounds 254 Ore. 584, 462 P.2d 671 (1969). In the Hay case, Oregon brought suit against a motel owner who had enclosed a portion of the beach above high tide for the exclusive use of motel guests. Relying explicitly upon the Seaway case, the court found that a public right to use the dry sand beach existed by implied dedication. The court reviewed the Oregon statute¹¹ and found it to be virtually identical in all relevant respects to the Texas legislation upon which it was patterned. Unfortunately, the precedent-setting Oregon Supreme Court decision which affirms the Hay result but on the ground of immemorial custom does not discuss the Texas case or construe the two statutes.

Rather than adopt the approach of the roadway cases, which would have made application of the dedication doctrine to this case a rather simple extension of the Seaway case, the court in the Hay case takes the view that "ocean beaches are in a class by themselves, distinguishable from all other classes of property." Appellant's Brief, p. 28. By placing beaches in a class of their own, the court also avoids the implied license to use held by many cases to apply to vacant, wild or unimproved land. Many stretches of isolated Oregon beach, however, are not clearly sui generis when compared to wild or "unimproved" forest, riverfront or prairieland.¹²

On appeal, the Oregon Supreme Court affirmed the decision upon the ground that the public's right to use the shore derived from immemorial custom. State ex rel. Thornton v. Hay, 254 Ore. 584, 462 P.2d 671 (1969). Ambiguous language in the court's opinion suggests that implied dedication could not have been used as an alternative theory to support the holding. 462 P.2d 671, 675. The court deals plainly with fictive intent,¹³ but retracts in a qualifying footnote.¹⁴ The net result is that the Hay opinion identifies the problem of implied intent without resolving it either way.

Exactly who months after the Oregon Supreme Court finally disposed of the Hay case, the Supreme Court of California decided Gion v. City of Santa Cruz, [2 ELR 10188] 2 Cal. 3rd 29, 84 Cal. Rptr. 162, 465 P.2d 50 (Calif. Feb. 19, 1970). In its opinion the court also decided Dietz v. King, in which the facts and issues were similar. In Gion the plaintiff asked the county court to quiet plaintiff's unfettered title to three parcels of land on the oceanfront. This the court refused to do, finding the land subject to a public recreation easement.The public had made continuous and uninterrupted use of the land for more than five years, and the City of Santa Cruz had made extensive improvements on the land and maintained it for a like period. In Dietz, plaintiffs, as representatives of the public, asked the county court to enjoin defendant landowners from interfering with the public's use of Navarro Beach in Mendocino County and an unimproved dirt road leading to the beach. The beach is a small, sandy peninsula jutting into the Pacific Ocean. The Mendocino County court ruled in favor of defendants, concluding that there had been no dedication of the beach or road and that widespread public use does not lead to an implied dedication. 465 P.2d 50, 52, 54-5.

The court held that common law dedication to the public can be proved either by a showing of acquiescence by the owner in the public use, or by establishing open and continuous use by the public for the prescriptive period, which in California is only five years. Thus adverse use of which the owner is aware will establish the dedication. The test of use is whether the public used the land as it would any other public land, going on it believing that the right to do so existed apart from anyone's permission.

The California Supreme Court thus circumvents entirely the problem of the owner's intent to dedicate, an intent which the Texas Supreme Court struggled to find. However, in both cases dedication without intent to do so signals the presence of something very much like a prescriptive easement. The court may have been thinking uneasily of California precedents forbidding the public to hold prescriptive easements, or of a California statute which precludes prescriptive easements where owners have posted signs saying that use is permissive.¹⁵ Whatever the explanation, the two cases have helped render the distinction between an easement acquired by implied dedication and one acquired by prescription almost nonexistent.

One of the most interesting aspects of the Gion case is its holding that there is no presumption that use of land by the public is by implied license of the owner. 465 P.2d 50, 57. Thus the implied license to use open lands appears to have fallen to the passage of time in California. Owners must now show affirmatively that they granted the public a license to use, or they must demonstrate that they have made bona fide attempts to prevent public use. The burden of proof has been shifted to the landowner, with the court completely shortcutting any attempt to distinguish the open lands or roadway cases from the beach cases.¹⁶

Thus what Texas and Oregon have attempted to accomplish by statute the Supreme Court of California has accomplished in part by judicial decision. In these three states, at least, the burden of proof is on the landowner to overcome a prima facie showing that the public has established a right to the use of the shoreline. Of course, the constitutionality of the Texas and Oregon statutes and the presumption which they create has not been passed upon. The Texas Supreme Court explicitly declined to rule on that issue in the Seaway case, and the trial court's finding of the Oregon law's validity in Hay is dictum. No plaintiff in either jurisdiction has attempted as yet to rely on the statutory presumption. On the other hand, the California court's ruling is exceptionally broad; the denial of a presumed implied public license to use applies to the facts of both Gion and Dietz cases and, at least by dictum, refutes the existence of the license in any modern California land dispute between the public and private landowners.

Prescription

Prescription remains the principal legal theory upon which courts rely in granting public easements over private land. In most common law jurisdictions, an easement can be created in favor of one person in the land of another by uninterrupted use and enjoyment of the land in a particular manner for the statutory period, which may vary considerably from state to state, so long as the user is open, adverse, under claim of right, but without authority of law or consent of the owner. See City of Daytona Beach v. Tona-Rama, supra; State ex rel. Thornton v. Hay, supra, 675. Some states forbid the taking of easements by the public, but they are the exception rather than the rule.

The recent cases involving beach access have not significantly changed the law of prescriptive rights. Each state of course has built up an extensive case law from frequent adjudications regarding one party's rights on or over another's land. The law regarding easements has its own extensive literature and occupies an important place in land law. It becomes environmental law by virtue of its role in some instances of guaranteeing public access to lands, and thus experiences, of significant recreational and environmental value.

Of the seven major beach access cases discussed in this Comment, the courts found that a prescriptive easement had been created in only the Seaway and Daytona Beach cases. The Hay case discussed the doctrine but did not rely upon it.

In the Seaway case, supra, the Texas Supreme Court found that the public had continuously used the east beach of Galveston Island for a period well in excess [2 ELR 10189] of the 10-year period required for prescription under Texas law. Adverse public use, as required by law, was established by the same evidence supporting dedication; i.e., it showed that the public used the seashore as if it were a public roadway and recreation area, believing that it was not necessary to obtain permission to do so.

Defendants raised two defenses which, were it not for the facts present in the case, might well have precluded the relief requested. The court agreed that use by owners and the public at the same time raises the presumption that use by the public is permissive only. However, the court went on to say that joint use is not determinative. Adverse public use may still exist, as it did in this case, if there are other facts present to show that such use is under a claim of right. 375 S.W.2d 923, 938.

Defendants also argued that the area over which plaintiffs were attempting to assert the easement was too vaguely defined to allow it to stand. Here the court was required to confront one of the principal components of the defense used in the open lands cases: if an owner is to have some of the rights of full fee ownership stripped from him, he is at least entitled to clear notice of the exact use of his land which he no longer may bar. Otherwise, fairness would suggest that he be allowed to prevail on his defense of an implied license. The court held, however, that the area in question was quite clearly, even precisely, defined by the lines of mean low tide and vegetation. 375 S.W.2d 923, 939.

In City of Daytona Beach v. Tona-Rama, Inc., 2 ELR 20511 (Dist. Ct. App. Fla. 1972), the public's use of the disputed area "as a thoroughfare, for sunbathing, picnicking, frolicking, running of dune buggies, parking, and generally as a recreation area and playground" for more than 20 years established a prescriptive right to continue that use.The court does not state what the minimum prescriptive period is, nor does the court reveal whether defendant sought to exclude the public entirely from the beach area in which defendant proposed to construct its tower. However, such an intent can reasonably be inferred from the tenor of the facts set out in the court's opinion.

Defendant Tona-Rama testified that the public's use of the disputed area owned by it did not adversely affect its use of the parcel of land in the operation of its pier, so defendant had no reason to prohibit or interfere with the public's use in preceding years. The public had been warned away only at times when the pier was being repaired. The court, citing a 1954 Supreme Court opinion, held that sporadic exercise of authority by the owners was insufficient to preserve their rights against the public. Joint use thus was consistent with establishment of a public easement.

The court's opinion can be fairly called an "uneventful" application of the theory of prescription to a set of typical facts. The court uses the traditional definition of prescriptive easement and applies it easily, citing three earlier Florida cases as precedents. Beach cases relying on this and other theories in New York, New Jersey, Texas, California and Oregon are not mentioned. It is as if in the Florida case the court was applying settled law in a routine manner.

The court also fails to mention the theory of dedication, which appears to be the preferred theory in at least two states, Texas and California. This oversight is puzzling since dedication is the most convenient theory on its face for establishing public rights in land. In fact, a finding that a prescriptive right exists implies that a legal action, such as trespass or ejectment, was available to the record owner to prevent the use which, if unchallenged, establishes the easement. Such actions cannot lie against the public because a named defendant is not available. Although avoided by the court, the problem is explicitly raised by the passage in the Florida Supreme Court opinion upon which the Daytona Beach court relies. In setting forth the elements necessary to establish a prescriptive easement in land, the Florida Supreme Court in Downing v. Bird, 100 So. 2d 57, 64, 65 (Fla. 1958), said:

… use … must be inconsistent with the owner's use and enjoyment of his lands and must not be a permissive use, for the use must be such that the owner has a right to a legal action to stop it, such as an action for trespass or ejectment. 2 ELR 20512.

The court did not explain how such an action could lie against the general public in this case. Nor did the court discuss other means of warning the public away or preventing its use of the area, such as was suggested in the Hay case, to be discussed next.

In State ex rel. Thornton the Oregon Supreme Court refuted all the objections raised to the theory of prescription but went on to affirm on the ground of custom. Defendants had argued that the general public, not being subject to actions in ejectment and trespass,¹⁷ cannot acquire rights by prescription, because the statute of limitations is irrelevant when an action cannot be brought. The court answered first with logic and then with authority. While actions against the public may not be feasible, it said, public incursions may be prevented or at least minimized by posting and fencing the land. Relying on the roadway cases, the court cited several instances wherepublic prescriptive easement were granted. Finally, the court cited the Oregon version of the Open Beaches Act, which, while it would not actually convey an interest in land, could nevertheless express a strong public policy specifically in favor of prescriptive easements in beach land for public recreational use. 462 P.2d 671, 676.

Prescription thus remains one of the principal theories upon which to establish public rights in private lands, in spite of minor conceptual problems with its application. While its elements are moving gradually toward full merger with those for dedication, nevertheless [2 ELR 10190] the theory may be preferred in some state jurisdictions as more consonant with pre-existing state case law.

The Public Trust Doctrine

Only one of the recent cases specifically relies on the public trust doctrine to establish the public's right to use a recreational beach. The case Borough of Neptune City v. Borough of Avon-by-the-Sea, 2 ELR 20520 (Sup. Ct. N.J. July 29, 1972), adjudicates rights in a conventional, high-use, sandy recreational beach, rather than rights in wetlands or parklands, which are the usual subject of public trust litigation. The case nevertheless belongs among the leading cases which have defined and expanded the doctrine. By virtue of its reliance upon the public trust theory, the Avon case links the beach access cases, which stress public recreational rights, and the wetlands cases, which stress diverse recreational, economic and ecological interests.

The public trust doctrine is already well known to environmental attorneys and will not be extensively discussed here. Simply stated, the public trust doctrine protects public rights in certain properties, such as shorelands and parklands, requiring that they be used for public purposes and forbidding their alienation by government unless to serve a public purpose. Public purposes include use for recreation, as the Avon case holds, and preservation for enjoyment of lands in their natural state, as Marks v. Whitney, 2 ELR 20049 (Calif. 1971), holds. The doctrine was fully analyzed by Professor Sax in an article appearing in early 1970.¹⁸ At the time the Marks case was decided, the doctrine was discussed in an ELR Comment (2 ELR 10007 [January 1972]). Other articles appearing since Professor Sax's piece was published have added to the store of critical analysis accompanying cases which apply the doctrine.¹⁹ The case law and theoretical underpinning of the doctrine will not be further discussed here.

In the Avon case, the New Jersey Supreme Court held that the Borough of Avon-by-the-Sea had violated the public trust by charging nonresidents higher fees than residents for use of its beach area. The court reaffirmed that the land from mean high tide seaward is owned by the state in fee, while the upland sand area above mean high tide is owned by the municipality, a political subdivision of the state, and is therfore impressed with a trust in favor of the general public. The court notes that the doctrine derived from the ancient principle of English law that land covered by tidal waters belonged to the sovereign but was held for the common use of all the people. It cites the leading Supreme Court case on the doctrine, Illinois Central Railroad Co. v. People, 146 U.S. 387 36 L. Ed. 1018(1892), and the leading New Jersey opinion, Arnold v. Mundy, 6 N.J.L. 1 (Sup. Ct. 1821), for the content, origin and scope of the doctrine.²⁰ But from the beginning the court makes plain that it intends to approach the doctrine from the perspective of "the modern meaning and application of the public trust doctrine."²¹ 2 ELR 20522.

While the doctrine originated to protect tide-washed land, the "dry beach" is technically above mean high tide. Thus, viewed narrowly, the strip of beach in question is no different from other land father inland that in time can to be protected by the doctrine. Yet even if the court must view the dry sand area as analogous to interior parkland, it has no trouble doing so. The facts establishing that the municipality has dedicated the [2 ELR 10191] beach to recreational purposes also establish that the beach is "in effect, a public park." 2 ELR 20521.

The court has no problem expanding the doctrine from the original purposes which it served, such as protecting navigation and fishing, to other public uses, especially recreational ones. It cites cases from Massachusetts and Wisconsin to support its argument. To buttress its interpretation of the public policy considerations involved in beach access, it also cites State ex rel. Thornton v. Hay, supra, Gion v. City of Santa Cruz, supra, and the lower court opinion in Gewirtz v. City of Long Beach, 330 N.Y.S.2d 495 (Sup. Ct. Nassau Cty. 1972). Thus the Avon case joins with Marks v. Whitney in substantially enlarging the scope of the trust. See Comment, 2 ELR 10007 (January 1972).

For reasons that are not entirely clear, the court takes care both to spell out the limitations on the legislature's power to alienate trust property and to explore the implications for shortfront private landowners of the court's ruling. Both viewpoints are clearly dicta, yet involve issues of great importance both to the trust doctrine and to the beach access cases.

The court remarks that the scope and limitations of the public trust doctrine have never been defined in New Jersey law with any great degree of precision and uses this observation as the takeoff point for its discussion of the extent of the state legislature's power to alienate trust lands. The court begins by saying that early New Jersey cases began broadly to conclude that the state's power to vacate or abridge public rights in tidal lands was absolute; therefore, statutes allowing conveyances of such lands contain few, if any, limitations on this asserted power. However, the court goes on to question strongly whether such a power actually does exist in the state's legislature, citing the leading U.S. Supreme Court case:

The trust devolving upon the State for the public, and which can only be discharged by the management and control of property in which the public has an interest, cannot be relinquished by a transfer of the property. The control of the State for the purposes of the trust can never be lost, except as to such parcels as are used in promoting the interests of the public therein, or can be disposed of without any substantial impairment of the public interest in the lands and waters remaining. 2 ELR 20523.

The New Jersey Supreme Court goes on immediately to say that the earlier New Jersey cases may well have approved illegal transfers of land out of the public trust for private use. 2 ELR 20523. Without pause, the court passes to the issue of the effect of the present ruling on the public's use of private landowners' beaches:

The observation to be made is that the statements in our cases of an unlimited power in the legislature to convey such trust lands to private persons may well be too broad. It may be that some such prior conveyances constituted an improper alienation of trust property or at least that they are impliedly impressed with certain obligations in the grantee to use the conveyed lands only consistently with the public rights therein. For example, the conveyance of tide-flowed lands bordered by an ocean dry sand area in private ownership to the owner thereof may well be subject to the right of the public to use the ocean waters. And, whether or not there was any such conveyance of tidal land, the problem of a means of public access to that land and the ocean exists.2 ELR 20523.

Having expressed itself strongly in dicta on the issues of the legislature's power to alienate and the effect of the trust on private land, the court backs off to the narrow basis of its ratio decidendi:

This case does not require resolution of such issues and we express no opinion on them. We mention this alienation aspect to indicate that, at least where the upland sand area is owned by a municipality — a political subdivision and creature of the state — and dedicated to public beach purposes, a modern court must take the view that the public trust doctrine dictates that the beach and the ocean waters must be open to all on equal terms and without preference and that any contrary state or municipal action is impermissible. 2 ELR 20523.

One may speculate why the two dicta were delivered. Taking the second issue first, it is reasonable for the court to make some reference to the explosive issue of public rights in private beaches, since cases in the other jurisdictions discussed in this Comment²² had already granted the public the right to use the foreshore and have access to it. With the trend of cases running strongly toward granting public access over private beach on theories of dedication, prescription and custom, perhaps the court wanted to imply, without deciding, that the result which will be reached under the public trust doctrine when an appropriate case is brought will be exactly the same as that already reached under the other theories. Thus the dictum may be viewed as a form of indirect instruction to the lower New Jersey courts which undoubtedly will soon be hearing suits by the public against private beach owners.

The simple answer to the question of why the court expressed itself so strongly on the issue of the state legislature's power to pass trust lands into private hands lies in the necessary theoretical underpinning for the other dictum. If public rights over private holdings should be confirmed, then such rights logically depend upon the theory that the original grant to the private landowner by the state was invalid to the extent that it attempted to extinguish inalienable public rights of use and access.This, the argument goes, the legislature did not have the power to do.

Another possible explanation may lie in the tangled political and legal history of the proposed massive Hackensack Meadowlands sports and horseracing complex which would occupy 750 of the 21,000 acres in the marshland estuary of the lower Hackensack River basin. In this matter the Superior Court of Bergen [2 ELR 10192] county found that the state legislature's action in New Jersey Sports and Exposition Authority v. McCrane, 2 ELR 20052 (1971), was not contrary to the public trust in approving the development. The court in McCrane distinguished cases which implied that trust lands could not be so used by finding a sufficient public purposebehind the development.²³ On appeal to the New Jersey Supreme Court, the public trust issue was avoided by the majority as not ripe for determination:

A question was raised in the trial court as to whether the statutory grant of permission to the Authority to acquire from the State some tideflowed meadowland for purposes connected with construction or operation of the sports complex, violates the public trust doctrine which, it was said, imposes certain limitations on the alienation of such land. After pointing out that no sales or title transfers of that type are involved in the present case, and that, therefore, no issue in that regard is ripe for determination, the court discussed the matter generally, as well as the various statutes which will bear upon the ultimate resolution of any such problem, when and if it becomes necessary to deal with it. Since there is no such live issue in the case now, we hold that any decision on the subject must await a factual framework which makes judicial intervention appropriate. New Jersey Sports and Exposition Authority v. McCrane, 2 ELR 20051, ELR Dig. [194], [215] (N.J. May 12, 1972).

One judge, however, was more explicit in his view that the power of the legislature to alienate was more narrowly circumscribed:

The trial court recognized the doctrine and said that conveyance to the Authority of state-owned tidelands contemplated by the act would not violate it. I think the reasons given to support that conclusion are not sound, and I do not want to be understood as approving them. The mere fact that compensation will be paid and the moneys received by the state deposited, as required by statute (N.J.S.A. 13:1B-13.13), in the constitutionally protected Fund for the Support of Free Public Schools (Const. Art. VIII, sec. IV, par. 2), does not in and of itself establish compliance with the trust requirements. All moneys received by the State from any source must be used for a public purpose and dedication to the school fund adds nothing. Nor is compliance incontrovertibly demonstrated by the fact that the lands will promote a public purpose, i.e., a racetrack and a football stadium. Since we do not know what precise use of the tideflowed lands within the 750 acres is contemplated by the Authority, any conclusion as to compliance with the public trust doctrine is quite impossible at this juncture. The point is that the true requirements of the doctrine must be met in agency determinations as to the location, type and character of the Authority's various projects in relation to tide-flowed land owned by the state and, indeed, in decisions of the Meadowlands Commission as to development plans for the whole area, and that, in my opinion, compliance will not be established simply upon the above noted based stated by the trial court. Per Hall, J., concurring in part and dissenting in part, 2 ELR __.

Perhaps the New Jersey Supreme Court in the Avon case is implying that the result in the Hackensack Meadows case should not be a source of encouragement to wetlands developers who might read into the opinion an indication of continued judicial tolerance of wetlands transfers and wetlands development in violation of trust obligations. Further, the Avon decision specifically cites the earlier Hackensack Meadows decision as illustrative of the problem of vanishing wetlands. The court's wait-and-see attitude in the Meadows case, combined with strongly supportive dicta in the Avon case, may mean that the sports complex will be subjected to close judicial scrutiny under the trust doctrine if and when the actions of the Authority are brought before the courts.

As the Avon decision points out, the law of public trust is in many respects unsettled. It will perhaps remain so, again as the court indicates, until modern interpretations of the scope of the flexible doctrine have evolved. Yet existing case law has consistently confirmed that lands held in trust are not subject to total legislative freedom to convert them to inconsistent uses or pass them into private hands. Professor Sax, who believes that restraints upon such alienation are inconsistent with a viable concept of legislative power, has adequately shown that the courts have very closely examined transfers out of the public trust to alternative public interests which such transfers allegedly serve. And even Professor Sax feels compelled to cite strong state supreme court language which severely fetters, or perhaps forbids entirely, legislature's removal of lands impressed with the trust, although he dismisses these as dicta.²⁴

Custom

The Oregon Supreme Court held in 1969 that the public had used the dry sand area of Oregon's beaches for recreational purposes under a claim of right since the beginning of the state's history. State ex rel. Thornton v. Hay, supra. In this case a beachfront motel owner unsuccessfully sought to fence the dry sand area to which he held record title for the exclusive use of this patrons. In a sweeping opinion the court relied on a theory of customary rights which allowed it effectively to attempt to confirm public rights in all the state's beaches:²⁵

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. An established custom, on the other hand, can be proven with reference to a larger region. Ocean-front lands from the northern to the southern [2 ELR 10193] border of the state ought to be treated uniformly. 462 P.2d at 676.

Of course the burden which the public must carry is much greater in a suit to establish custom than it is in similar causes of action resting upon prescription and dedication. In Gion, five years of adverse use established the public's right. "Time immemorial" is a more formidable standard. However, as the citation above makes clear, the stakes in an action to establish custom are greater; an adjudication such as State ex rel. Thornton is forceful precedent, if not determinative in any other subsequent adjudication in the state of shorefront public rights. Also, in some respects the evidence necessary to prove custom is easier to gather than the evidence necessary to support a finding that the public has established a more contemporary right to a particular manner of use for a specific stretch of beach. Demonstrating the overall manner and extent of use of an entire state's shoreline by large population groups over decades, or even centuries, becomes a task for the historian, not the lawyer. Put another way, in such cases broader evidentiary generalizations may govern; the actual parties to the dispute may serve only to raise the larger public issue.

The doctrine of custom faces two primary obstacles, beyond the more conventional and narrow arguments that English custom was confined to very limited geographic localities and that custom has been supplanted by modern legal procedures for establishing title ownership.First, very few state decisions in any jurisdiction rely upon custom. It has only been applied in nineteenth-century New Hampshire cases; Maine and Oregon decisions mention it in dicta; and early Connecticut, New Jersey, New York and Virginia cases all disapproved of the doctrine.²⁶ Thus the doctrine has little currency in the United States. Attempts to revive it must overcome the absence of case law and vitality. Second, the doctrine was applied to coastal areas held specifically by the Oregon Court to be "sui generis". Any attempt to generalize the doctrine for wider applicability will probably be countered with argument that the application of the doctrine in Oregon was strictly controlled by unique facts.

Application of Beach Access Theories to Other Cases

The beach access cases focus upon unique geographical areas of special importance to public recreational needs. The court in State ex rel. Thornton says that beaches geographically are "sui generies", and all the cases acknowledge increasing public concern over access to the nation's shrinking recreational shoreline. However, the special circumstances of the beach cases should not be allowed to obscure the general applicability, and flexibility, of the doctrines currently applied by the courts to confirm and enlarge the public's right to use the shoreline.

The doctrines of dedication, prescription, public trust and custom are not wedded to any particular set of facts. They have been used in a multitude of jurisdictions over hundreds of years to confirm or deny public rights in a wide variety of circumstances. Prescription certainly is a workhorse of the law, and dedication frequently is urged in public land use cases. The public trust doctrine is applied with increasing frequency, and custom has deep roots in many legal systems. The tendency of the beach access decisions to analogize "the beach cases" to "the roadway cases" and to "the parklands cases" should not be allowed to overshadow the plain fact that the doctrines involved have easily covered new factual situations. And perhaps the courts' tendency to expand slowly from one specific category of land use to another can be explained by the fact-oriented nature of the elements of the various doctrines: e.g., how precisely is the affected area defined? How long has uninterrupted public use continued? What actions has the record owner taken to discourage or prohibit public use? How important to the public is the right sought? The roadway and parklands cases afford valuable guidance on the amount of evidence required to establish public use, whatever the legal theory finally applied.

New factual situations to which the doctrines in question may be applied are not difficult to imagine. The public makes recreational use of local and private land in many different locations across the country. This land may be quite dissimilar to beaches and lie thousands of miles from the oceans. On such property, public and private rights may never have been clearly settled. Yet years of use as a valuable public asset may have slowly vested the general public with rights that may be protected at law. This is particularly true along streams,²⁷ or adjacent to other publicly held land, or within private in-holdings. One may even speculate that in some instances a public right-of-way may have been established, not only to gain access to other public recreational lands, such as a park, wilderness or wooded area, but to what has come to be termed "respectful access", indicating that the public is entitled to an aesthetically inoffensive route, or buffer zone, on the way to its final destination.

Further, in recent history the defense of an implied license to use open lands, discussed above, has had almost no meaningful application. Private land is seldom, if ever, left untended, unposted or unfenced where any appreciable public use occurs. Thus, the evidence which a private party may be required to muster today to show that land left to the public to hike and play upon was not [2 ELR 10194] abandoned to public use certainly should not allow foreclosure of what to the public's eyes is clearly a dedication. This is especially true of trails and fishing and camping sites, which are precisely defined geographically by the pattern of use. These uses, moreover, are entitled to the same kind of "buffer zoning" which applies to the concept of respectful access. Thus future judicial orders may well confirm, not only the bare right to use a trial or campsite, but also a reasonable screen from inconsistent uses proposed by the remiss record owner.

Attorneys who find themselves representing the general public interest in land use disputes would do well to heed the lesson taught by the beach access cases. Public rights may be vindicated on a variety of grounds and legal theories. The public trust doctrine by no means is the only tool in the environmental attorney's arsenal of arguments; a close examination of the history of use in the particular case may show more support for specific public rights of use or access than first imagined. And with shifting national — and judicial — attitudes about the importance of recreational and ecologically protective uses, public policy arguments may be marshalled in new, more forceful ways.

1. The court enjoined "any permanent structures in conflict with the public right." 2 ELR 20512. The City, however, was empowered to construct "lifeguard towers, public sanitation facilities and the like." 2 ELR 20513.

2. H.R. 4951, 92d Cong. 1st. Sess. (Feb. 25, 1971), by Hon. Robert Eckhardt (D-Tex.), author of the Texas Open Beaches Act.

3. "A dedication is generally defined as the devotion of property to a public use by an unequivocal act of the owner, manifesting an intention that it shall be accepted and used presently or in the future. The intention of the owner to dedicate and acceptance by the public thereof are the essential elements of a complete dedication." 11 McQuillin, The Law of Municipal Corporations 3d ed. (revised), § 33.02.

4. See Note, "Public Access to Beaches," 22 Stanford L. Rev. 564, 572-3.

5. Paepcke v. Public Building Comm'n of Chicago, 46 Ill. 2d 330, 1 ELR 20172 (1970), decided only a few months before the Overton Park case by the Illinois Supreme Court, allowed the use of 4 acres of 371-acre Washington Park in Chicago for construction of school facilities, despite an explicit finding that the park, created in 1869, was dedicated to public use and was impressed with the public trust (discussed infra). The court found that several enactments of the Illinois legislature together were "sufficiently broad, comprehensive and definite to allow the diversion in use involved here." 1 ELR 20175. Whatever the equities of this particular incursion on the public trust, and they do appear to run in favor of the changed use, the express legislative permission cited as necessary by the New York court and cases cited by it may have been lacking under the test applied by the Illinois Supreme Court.

6. The alternative holding, that a prescriptive easement had been acquired, is discussed infra.

7. Chap. 19, Acts of the 56th Legis., 2d Called Sess. (1959), as amended by Chap. 659, Acts of the 56th Legis., Reg. Sess. (1965), codified as Art. 5415d, V.A.T.S.

8. See "Footprints on the Sands of Time," Report of the Interim Beach Study Committee of the Texas Legislature (1970), p. 17.

9. See J. Krier, "Environmental Litigation and the Burden of Proof," in Baldwin and Page, eds., Law and the Environment (New York: 1970), pp. 105-122.

10. See "Footprints," op. cit., p. 17.

11. Chap. 601, Oregon Laws 1967, No. 14-642.

12. The Oregon Supreme Court's opinion, basing affirmance in the Hay case upon custom, is discussed infra.

13. "In the case at bar, it is unlikely that the landowners thought they had anything to dedicate, until 1967, when the notoriety of legislative debates about the public's rights in the dry-sand area sent a number of ocean-front landowners to the offices of their legal advisors." 462 P.2d 671, 675.

14. "Because of the elements of public interest and estoppel running through the cases, intent to dedicate is sometimes 'presumed' instead of proven. But conceptually, at least, dedication is founded upon an intent to dedicate." [extensive case citations ommitted] 462 P.2d 671, 675.

15. Note, op. cit., p. 578.

16. The court also cites cases where athletic fields and parks were found to have been dedicated to public use. 465 P.2d 50, 58.

17. See the discussion of the Daytona Beach case, supra.

18. J. Sax, "The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention," 68 Mich. L. Rev. 471(1970).

19. See, e.g., Earnhardt, "Defining Navigable Waters and the Application of the Public Trust Doctrine in North Carolina," 49 N.C. L. Rev. 888(1971); Jaffee, "State Citizen Rights Respecting Greatwater Resource Allocation: From Rome to New Jersey," 25 Rutgers L. Rev. 571(1971); Note, "The Public Trust in Tidal Areas: A Sometimes Submerged Traditional Doctrine," 79 Yale L.J. 762(1970).

20. The 1821 New Jersey Supreme Court opinion states well the theory of property upon which the doctrine rests. Chief Justice Kirkpatrick wrote as follows:

Every thing susceptible of property is considered as belonging to the nation that possesses the country, and as forming the entire mass of its wealth. But the nation does not possess all those things in the same manner. By very far the greater part of them are divided among the individuals of the nation, and become private property. Those things not divided among the individuals still belong to the nation, and are called public property. Of these, again, some are reserved for the necessities of the state, and are used for the public benefit, and those are called the domain of the crown or of the republic; others remain common to all the citizens, who take of them and use them, each according to his necessities, and according to the laws which regulate their use, and are called common property. Of this latter kind; according to the writers upon the law of nature and of nations, and upon the civil law, are the air, the running water, the sea, the fish, and the wild beasts. Vattel lib. i, 20. 2 Black. Com. 14. But inasmuch as the things which constitute this common property are things in which a sort of transient usufructuary possession, only, can be had; and inasmuch as the title to them and to the soil by which they are supported, and to which they are appurtenant, cannot well, according to the common law notion of title, be vested in all the people; therefore, the wisdom of that law has placed it in the hands of the sovereign power, to be held, protected, and regulated for the common use and benefit. But still, though this title, strictly speaking, is in the sovereign, yet the use is common to all the people. (6 N.J.L. at 71) 2 ELR 20522.

21. And elsewhere:

We have no difficulty in finding that, in this latter half of the twentieth century, the public rights in tidal lands are not limited to the ancient prerogatives of navigation and fishing, but extend as well to recreational uses, including bathing, swimming and other shore activities. 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 created to benefit.

22. Except New York, where the courts have not yet spoken to the issue.

23. Compare Paepcke v. Public Building Commission of Chicago, 1 ELR 20172 (Ill. 1970), discussed in footnote 5, supra.

24. Sax, op. cit., pp. 485-6.

25. The elements of the cause of action, as listed by the court, are based on Bouvier and Blackstone and are as follows: a custom must be (a) ancient, (b) exercised without interruption, (c) peaceable and free of dispute, (d) reasonable, (e) certain (defined boundaries), (f) obligatory on landowners, and (g) not repugnant to or inconsistent with other customs or laws. 462 P.2d 671, at 677.

26. See Note, Beach Access, op. cit., p. 583.

27. See Southern Idaho Fish and Game Association v. Picabo Livestock Co., 2 ELR 20472 (5th Jud. Dist. Idaho June 15, 1972), in which an owner of land under a patent expressly subject to vested and accrued rights for "mining, agricultural, manufacturing or other purposes" may not bar members of the public from using the stream for fishing and boating purposes.