Custom and Public Trust Doctrine

Question 1

What are the requirements of a customary right from Blackstone’s Commentaries?

Answer 1

1. Antiquity - must be ancient, used so long that the memory of a man runneth not to the contrary.
2. The right must be exercised without interruption; most courts require that the owner must kick people out or file a lawsuit for there to be interruption.
3. The customary use must be peaceful and free from dispute.
4. Reasonableness - use must be appropriate to the land; reasonable compared to the rights of fee simple.
5. Certainty - visible boundaries
6. Obligatory - not left to the option of each landowner.
7. Must not be repugnant, or inconsistent, with other customs or with other law.

Question 2

State of Oregon ex. real. Thornton v. Hay - State prevented defendant tourist facility from constructing fences blocking access to their beach property (dry sand area).

Answer 2

Court used the Blackstone requirements of a customary right, but avoided requirements that it must apply to a small group of people, and to a small area.
State wanted public access to dry-sand areas for tourism.

Question 3

What is the Public Trust Doctrine?

Answer 3

Submerged and submersible lands are preserved for public use in navigation, fishing, and recreation and the state, as trustee for the people, bears responsibility of preserving and protecting the right of the public use of the waters for those purposes.

Question 4

What are the two types of property rights?

Answer 4

Public Use - cannot interfere with this right

Private use

Question 5

Illinois Central Railroad v. Illinois - State granted land along a lake to Railroad company. Later claimed no power to trasnsfer the land under the Public Trust Doctrine.

Answer 5

Rule: State cannot transfer its whole rights to the land under the public trust because it snuffs out the right of public use.

• State can lease the interest of the land to private companies for the improvement of the navigation and use of the wateres (wharves, docks, etc). Must enable and not interfere with public use.

Question 6

Matthers v. Bay Head Improvement Association - Association maintained beach with HOA fees and restricted access to the dry sand area to HOA members only during the summer.
Issue: Whether the public has a right to gain access through and to use the dry sand area not owned by a municipality but by a quasi-public body.

Answer 6

Rule: Public must be afforded reasonable access to the foreshore as well as a suitable area for recreation on the dry sand. If there are other access points nearby, those are acceptable, and the landowner does not need to allow people to cross his land.
Even though the issue was for land owned by a quasi-public body, the court ruled that all private land was affected.

Question 7

Opinion of the Justices - Public Use of Coastal Beaches -n

1. Does New Hampshire Law identify a particular coastal feature or tidal events at outlining the maximum shoreward extension of the public trust area boundary?
2. Does the effect of the bill which recognized that the public trust extends to those lands subject to the ebb and flow of the tide, infringes upon existing private property rights?
3. Do the provisions of the bill, which recognize a public easement in the dry sand area of historically accessible coastal beaches, constitute a taking of private property for a public purpose without just compensation?

Answer 7

1. Yes, the average high water mark.
2. No, already common law rights exist regarding the public use of land
3. Yes, it amounts to a taking and the landowner must be compensated.