Custom and Public Access

Question 1

Elements of custom:

Answer 1

Long and general usage; Exercised w/o interruption; Customary use be peaceable/ free from dispute; Reasonable use; Certainty; Obligatory – no option for exclusion

Question 2

Thorton v Hay:

Answer 2

OR, until recently, had public prop extend to vegetation line; fence around private dry-sand area of beachno right to exclude from dry-sand area b/c custom

i) 2 options:
(1) Court rejects: had right then lost it (prescriptive easement)usually just for private individuals; endless litigation
(2) Custom: never had the right to exclude (even though not PT land, public always had the right to use via custom)
(a) CL: If you were using something as long as anyone could remember, you could claim a right of use by custom even w/o valid claim of ownership