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The Oregon Supreme Court recently issued an en banc decision in Stevens v. City of Cannon Beach affirming a court of appeals decision to dismiss plaintiffs' claim of inverse taking. In so doing, the court confirmed its holding in State cc rel. Thornton v. Hay that a public easement for recreation exists in the dry sand areas of the state's beaches under the doctrine of custom. The Stevens court stated that because custom as applied to Oregon's ocean shores merely enunciates the "background principles of ... the law of property," its decision comported with the United States Supreme Court holding in Lucas v. South Carolina Coastal Council. Lucas is the most recent in a long line of Supreme Court "takings" decisions. In that case, the Court applied what it termed a "second categorical rule" and held that confiscatory regulations, those "[w]here the owner of real property has been called upon to sacrifice all economically beneficial uses in the name of the common good, ..." were per se takings and required compensation. The Court qualified this categorical rule, however, and declared that it would not be applied when the "proscribed use interests were not part of [the property owner's] title to begin with.” Decided just one year after Lucas, the Stevens case appears to test the same constitutional question. A major distinction between the cases, however, is in the method that each state used to assert public rights in otherwise privately owned property. South Carolina relied solely upon its police powers to proscribe certain "harmful uses" of coastal property through enactment of the Beachfront Management Act. In contrast, the Oregon court affirmed the public's rights in the state's shorelands by finding that under the doctrine of custom the public always had a right to use the dry sand area of Oregon's beaches. Under this theory, the statutes encompassed in Oregon's "Beach Bill" serve only to codify the limitations which "inhere in the land," by virtue of state property law, and do not "newly legislate] or decree[]"' limitations on property rights. Whether the doctrine of custom is a state property law that can withstand constitutional scrutiny is the subject of this Note. The search for answers to this inquiry begins with a review of the doctrine of custom, both through its common law history and a survey of the more recent decisions on the subject. The Note then analyzes Oregon's doctrine of custom and the application of this doctrine in light of the Supreme Court's takings analysis in Lucas.



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