ELR Citation: ELR 20311
No(s). 28831 (Or. Ct. App. Jan 21, 1974)

The Oregon Court of Appeals affirms a lower court ruling denying declaratory or injunctive relief in a suit seeking to establish public recreational rights in a privately owned sand dune that is located above the vegetation line and on which defendants intend to construct a condominium project. The plaintiff state highway commission has failed to prove that the public has acquired recreational rights in the land by either prescription, implied dedication, or custom. Defendants' repeated attempts over the last 14 years to assert their claim of ownership by actions such as fencing the property, posting no trespassing signs, and ejecting trespassers are sufficient to defeat vague testimony as to adverse user. Under Oregon law, an intent to dedicate land to public use must be clearly and unequivocally manifested in the owner's actions in order for a court to find that an implied dedication has occurred, and in this case, the court finds no evidence of such an intent. The court also disposes of plaintiff's claims that the public has acquired recreational rights in the land through custom by distinguishing land above the vegetation line from the dry sand area below it that has customarily been reserved for public recreation. In addition, the court points out that the plans for the project include provisions for several formally dedicated access routes over the property to the public beach. For the lower court's opinion, see 3 ELR 20290.

Counsel for Plaintiff
W. Michael Gillette, Solicitor General
Lee Johnson, Attorney General
State Office Building
Salem, OR 97310

Counsel for Defendants
James H. Clarke
George L. Kirklin
Vawter Parker
Dezendorf, Spears, Lubersky & Campbell
Eighth Floor, Pacific Building
520 S.W. Yamhill Street
Portland, OR 97204

C.E. Wheelock
Wheelock, Richardson, Niehaus, Barnes & Murphy
329 S.W. 5th Avenue
Portland, OR 97204