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DO NOT USE AI. On the same document, please turn in IRACs of the following cases, and paragraph analysis for two questions following each caseFelgenhauer v. Soni and choose two “Notes and Questions” problems immediately following the case to answerMatthews v. Bay Head and choose two “Notes and Questions” problems immediately following the case to answer
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Chapter 6: Easements
1
Chapter 6: Easements
A.
What Is An Easement?
Easements are interests in land. Unlike fee simple ownership, they are nonpossessory. Rather,
they allow the easement holder to use or control someone else’s land. Suppose Anna owns
Blackacre, and Brad owns Whiteacre, which borders Blackacre. Anna would like to cross
Whiteacre to reach Blackacre. She could ask Brad for permission to cross, but even if he says
yes, permission can be revoked. Brad might also convey Whiteacre to a less welcoming owner.
Anna may therefore wish to acquire a property interest that gives her an irrevocable right to
cross over Whiteacre. If Brad conveys her this interest (by sale or grant), Anna now owns an
easement of access, which is a right to enter and cross through someone’s land on the way
to someplace else.
Terminology. Easements come in multiple flavors. The first distinction is between
affirmative and negative easements. An affirmative easement lets the owner do something
on (or affecting) the land of another, known as the servient estate (or servient tenement).
The right is the benefit of the easement, and the obligation on the servient estate is its burden.
As noted above, a common affirmative easement is an easement of access (also known as
an easement of way), which requires the owner of the servient estate to allow the easement
holder to travel on the land to reach another location. In the example above, Anna has an
affirmative easement to cross Whiteacre, the servient estate, to access Blackacre. 1 A negative
easement prohibits the owner of the servient estate from engaging in some action on the
land. For example, if Anna has a solar panel on her property, she might acquire a solar
easement from Brad that would prohibit the construction of any structures on Whiteacre that
might block the sun from Anna’s panel on Blackacre.
Another distinction is between easements appurtenant and easements in gross. An
easement appurtenant benefits another piece of land, the dominant estate. The owner of the
dominant estate exercises the rights of the easement. If ownership of the dominant estate
changes, the new owner exercises the powers of the easement; the prior owner retains no
1 If the easement holder is allowed to take something from the land (suppose Anna has the right to harvest wheat from
Whiteacre while in transit to Blackacre), the right is called a profit a prendre or profit. Profits were traditionally classified
as distinct from easements, though their legal treatment is typically similar. See, e.g., Figliuzzi v. Carcajou Shooting Club of
Lake Koshkonong, 516 N.W.2d 410, 414 (Wis. 1994) (“[W]e can find no distinction between easements and profits
relevant to recording the property interest[.]”). The Restatement characterizes the profit as a kind of easement. § 1.2.
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interest. So if Anna’s easement to cross Whiteacre to reach Blackacre is an easement
appurtenant, Blackacre is the dominant estate. If she conveys Blackacre to Charlie, Charlie
becomes the owner of the easement.
In an easement in gross, the easement benefits a specific person, who exercises the rights of
the easement rights regardless of land ownership. If Anna’s easement to cross Whiteacre to
reach Blackacre is an easement in gross, she keeps her easement even if she conveys Blackacre.
In general, the presumption is in favor of an easement appurtenant over an easement in gross.
Why do you think that is?
Easements are part of the larger law of servitudes, which include real covenants and equitable
servitudes. A servitude is a legal device that creates a right or obligation that runs with the
land. A right runs with the land when it is enjoyed not only by its initial owner but also by all
successors to that owner’s benefited property interest. A burden runs with the land when it
binds not only its initial obligor but also all successors to that obligor’s burdened property
interest. A servitude can be, among other things, an easement, profit, or covenant. These
interests overlap, and the Restatement (Third) of Property (Servitudes) (2000) seeks to unify
them. 2 As a matter of history, however, easement law developed as a distinct set of doctrines,
and this chapter gives them separate treatment. 3 We will discuss equitable servitudes in our
chapter on Restrictive Covenants.
B.
Creating Easements
1.
Express easements
Because easements are interests in land, express easements are subject to the Statute of Frauds.
Failures to comply with the statute may still be enforced in cases of reasonable detrimental
reliance. See, e.g., RESTATEMENT (THIRD) OF PROPERTY (SERVITUDES) § 2.9.
2 A covenant is a servitude if either its benefit or its burden runs with the land; otherwise it is merely a contract enforceable
only as between the original contracting parties (or perhaps a gratuitous promise enforceable by nobody at all). When a
covenant is a servitude, it may equivalently be described as either a “servitude” or “a covenant running with the land.” We
will discuss covenants in a later chapter.
3 Moreover, the Third Restatement is somewhat notorious for the extent to which it seeks not only to “restate” the
common law, but to push it in a particular direction. While the Third Restatement does tend to provide the modern
approach to most servitudes issues, it has a tendency to advocate against traditional, formalist rules that are often still good
law in many American jurisdictions. We will not thoroughly explore these distinctions here; you should however be aware
of the importance of thoroughly investigating the applicable law in your jurisdiction if you ever encounter servitudes in
practice.
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***
2.
Implied Easements
Easements may come into being without explicit agreements. They may arise from equitable
enforcement of implied agreements or references to maps or boundary references in
conveyances. RESTATEMENT (THIRD) OF PROPERTY (SERVITUDES) § 2.13. In this section, we
focus on two forms of implied easements: An easement implied by existing use and an
easement by necessity. Both such easements commonly arise as a byproduct of land
transactions.
a. Easement implied by existing use
An easement implied by existing use may arise when a parcel of land is divided and amenities
once enjoyed by the whole parcel are now split up, such that in order to enjoy the amenity (a
utility line, or a driveway, for example), one of the divided lots requires access to the other.
Imagine, for example, a home connected to a city sewer line via a privately owned drainpipe,
on a parcel that is later divided by carving out a portion of the lot between the original house
and the sewer line connection:
In such a situation, courts will frequently find an easement implied by prior existing use,
allowing the owner of the house to continue using the drainpipe even though it is now under
someone else’s land. See, e.g., Van Sandt v. Royster, 83 P.2d 698 (Kan. 1938). There are,
however, some limits to the circumstances that will justify the implication of such an easement:
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[T]he easement implied from a preexisting use, [is] also characterized as a quasieasement. Such an easement arises where, during the unity of title, an apparently
permanent and obvious servitude is imposed on one part of an estate in favor of
another part. The servitude must be in use at the time of severance and necessary for
the reasonable enjoyment of the severed part. A grant of a right to continue such use
arises by implication of law. An implied easement from a preexisting use is established
by proof of three elements: (1) common ownership of the claimed dominant and
servient parcels and a subsequent conveyance or transfer separating that ownership; (2)
before severance, the common owner used part of the united parcel for the benefit of
another part, and this use was apparent and obvious, continuous, and permanent; and
(3) the claimed easement is necessary and beneficial to the enjoyment of the parcel
conveyed or retained by the grantor or transferrer.
Dudley v. Neteler, 924 N.E.2d 1023, 1027-28 (Ill. App. 2009) (internal citations and quotations
omitted). The following notes consider each of these elements.
Notes and Questions
1. Common Ownership. Are easements implied by prior existing use fair to owners of
subdivided land? Why shouldn’t we require purchasers of subdivided lots to “get it in
writing”—that is, to bargain for easements to obvious and necessary amenities when
accepting a parcel carved out from a larger plot of land? For that matter, why don’t we
require the original owner to bargain for the right to continue to use land that they are
purporting to sell? Who do we think is in a better position to identify the need for such
an easement, the prior owner of the undivided parcel, or the purchaser of the carvedout portion of that parcel? Should the answer matter in determining whether to imply
an easement or not?
***
2. Reasonable necessity. Reasonable necessity is something less than absolute necessity.
See, e.g., Rinderer v. Keeven, 412 N.E.2d 1015, 1026 (Ill. App. 1980) (“It is well
established that one who claims an easement by implication need not show absolute
necessity in order to prevail; it is sufficient that such an easement be reasonable, highly
convenient and beneficial to the dominant estate.” (internal quotation and citation
omitted)). Does this leave courts with too much discretion to impose easements? A
minority of jurisdictions make a formal distinction between implied easements in favor
of grantees and grantors, requiring strict necessity in the case of the latter.
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RESTATEMENT § 2.12. But see Tortoise Island Communities, Inc. v. Moorings Ass’n,
Inc., 489 So. 2d 22, 22 (Fla. 1986) (concluding that an absolute necessity is required in
all cases).
***
b. Easements by necessity
An easement by necessity (or sometimes way by necessity) arises when land becomes
landlocked or incapable of reasonable use absent an easement. For example, if A owns a
rectangular parcel bordered on the north, east, and west by privately owned land and on the
south by a public street, and conveys to B a strip of her land on the northern boundary, B will
acquire an easement by necessity across the southern portion of the parcel retained by A:
There are two traditional rationales for easements by necessity. The first considers it an implied
term of a conveyance, assuming that the parties would not intend for land to be conveyed
without a means for access. The second simply treats the issue as one of public policy favoring
land use.
***
Easements by necessity are typically about access, but other kinds of uses may be necessary to
the reasonable enjoyment of property. For example, suppose O conveys mineral rights to
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Blackacre to A. A would have both an easement of access to Blackacre and the right to engage
in the mining necessary to reach the minerals. Likewise, an express easement of way may
require rights to maintain and improve the easement. Access for utilities may also give rise to
an easement by necessity, creating litigation over which utilities are “necessary”:
When questioned by defendants as to why he could not use a cellular
phone on his property, plaintiff testified he ran a home business and a
cellular phone was not adequate to handle his business needs; for
example, a computer cannot access the Internet over a cellular phone.
Plaintiff also testified solar power and gas generators were unable to
produce enough electricity to make his home habitable.
Smith v. Heissinger, 745 N.E.2d 666, 672 (Ill. App. 2001) (affirming finding of necessity of
easement for underground utilities).
Courts often describe the degree of necessity required to find an easement by necessity as
being “strict.” See, e.g., Ashby v. Maechling, 229 P.3d 1210, 1214 (Mont. 2010) “Two essential
elements of an easement by necessity are unity of ownership and strict necessity.”). It is
certainly higher than that needed for an easement implied by existing use. That said,
considerable precedent indicates that the necessity need not be absolute. See, e.g., Cale v.
Wanamaker, 121 N.J. Super. 142, 148, 296 A.2d 329, 333 (Ch. Div. 1972) (“Although some
courts have held that access to a piece of property by navigable waters negates the ‘necessity’
required for a way of necessity, the trend since the 1920’s has been toward a more liberal
attitude in allowing easements despite access by water, reflecting a recognition that most
people today think in terms of ‘driving’ rather than ‘rowing’ to work or home.”).
***
3.
Prescriptive Easements
Easements may also arise from prescription. An easement by prescription is acquired in a
manner similar to adverse possession, as it is a non-permissive use that ultimately ripens into
a property interest. Recall the five elements of adverse possession: Entry and possession that
is (1) actual, (2) exclusive, (3) hostile or under claim of right, (4) open and notorious, and (5)
continuous for the statutory limitations period. Which (if any) of these elements might have
to be modified where the right being acquired is not a right of possession, but a right of use?
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Felgenhauer v. Soni
17 Cal.Rptr.3d 135 (Cal. App. 2004).
GILBERT, P.J.
Here we hold that to establish a claim of right to a prescriptive easement, the claimant need
not believe he or she is legally entitled to use of the easement. Jerry and Kim Felgenhauer
brought this action to quiet title to prescriptive easements over neighboring property owned
by Ken and Jennifer Soni. A jury made special findings that established a prescriptive easement
for deliveries. We affirm.
FACTS
In November of 1971, the Felgenhauers purchased a parcel of property consisting of the front
portion of two contiguous lots on Spring Street in Paso Robles, [California]. The parcel is
improved with a restaurant that faces Spring Street. The back portion of the lots is a parking
lot that was owned by a bank. The parking lot is between a public alley and the back of the
Felgenhauers’ restaurant.
From the time the Felgenhauers opened their restaurant in 1974, deliveries were made through
the alley by crossing over the parking lot to the restaurant’s back door. The Felgenhauers never
asked permission of the bank to have deliveries made over its parking lot. The Felgenhauers
operated the restaurant until the spring of 1978. Thereafter, until 1982, the Felgenhauers leased
their property to various businesses.
The Felgenhauers reopened their restaurant in June of 1982. Deliveries resumed over the
bank’s parking lot to the restaurant’s back door. In November of 1984, the Felgenhauers sold
their restaurant business, but not the real property, to James and Ann Enloe. The Enloes
leased the property from the Felgenhauers. Deliveries continued over the bank’s parking lot.
James Enloe testified he did not believe he had the right to use the bank’s property and never
claimed the right. Enloe said that during his tenancy, he saw the bank manager in the parking
lot. The manager told him the bank planned to construct a fence to define the boundary
between the bank’s property and the Felgenhauers’ property. Enloe asked the manager to put
in a gate so that he could continue to receive deliveries and have access to a trash dumpster.
The manager agreed. Enloe “guess[ed]” the fence and gate were constructed about three years
into his term. He said, “[Three years] could be right, but it’s a guess.” In argument to the jury,
the Sonis’ counsel said the fence and gate were constructed in January of 1988.
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The Enloes sold the restaurant to Brett Butterfield in 1993. Butterfield sold it to William
DaCossee in March of 1998. DaCossee was still operating the restaurant at the time of trial.
During all this time, deliveries continued across the bank’s parking lot.
The Sonis purchased the bank property, including the parking lot in dispute in 1998. In 1999,
the Sonis told the Felgenhauers’ tenant, DaCossee, that they were planning to cut off access
to the restaurant from their parking lot.
The jury found the prescriptive period was from June of 1982 to January of 1988.
DISCUSSION
I
The Sonis contend there is no substantial evidence to support a prescriptive easement for
deliveries across their property. They claim the uncontroverted evidence is that the use of their
property was not under “a claim of right.”…
At common law, a prescriptive easement was based on the fiction that a person who openly
and continuously used the land of another without the owner’s consent, had a lost grant.
California courts have rejected the fiction of the lost grant. Instead, the courts have adopted
language from adverse possession in stating the elements of a prescriptive easement. The two
are like twins, but not identical. Those elements are open and notorious use that is hostile and
adverse, continuous and uninterrupted for the five-year statutory period under a claim of right.
Unfortunately, the language used to state the elements of a prescriptive easement or adverse
possession invites misinterpretation. This is a case in point.
The Sonis argue the uncontroverted evidence is that the use of their property was not under
a claim of right. They rely on the testimony of James Enloe that he never claimed he had a
right to use the bank property for any purpose.
Claim of right does not require a belief or claim that the use is legally justified. It simply means
that the property was used without permission of the owner of the land. As the American Law
of Property states in the context of adverse possession: “In most of the cases asserting [the
requirement of a claim of right], it means no more than that possession must be hostile, which
in turn means only that the owner has not expressly consented to it by lease or license or has
not been led into acquiescing in it by the denial of adverse claim on the part of the possessor.”
(3 Casner, American Law of Property (1952) Title by Adverse Possession, § 5.4, p. 776.)…
Enloe testified that he had no discussion with the bank about deliveries being made over its
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property. The jury could reasonably conclude the Enloes used the bank’s property without its
permission. Thus they used it under a claim of right.
The Sonis attempt to make much of the fence the bank constructed between the properties
and Enloe’s request to put in a gate. But Enloe was uncertain when the fence and gate were
constructed. The Sonis’ attorney argued it was constructed in January of 1988. The jury could
reasonably conclude that by then the prescriptive easement had been established.
The Sonis argue the gate shows the use of their property was not hostile. They cite Myran v.
Smith (1931) 117 Cal.App. 355, 362, 4 P.2d 219, for the proposition that to effect a prescriptive
easement the adverse user “… must unfurl his flag on the land, and keep it flying, so that the
owner may see, if he will, that an enemy has invaded his domains, and planted the standard of
conquest.”
But Myran made the statement in the context of what is necessary to create a prescriptive
easement. Here, as we have said, the jury could reasonably conclude the prescriptive easement
was established prior to the erection of the fence and gate. The Sonis cite no authority for the
proposition that even after the easement is created, the user must keep the flag of hostility
flying. To the contrary, once the easement is created, the use continues as a matter of legal
right, and it is irrelevant whether the owner of the servient estate purports to grant permission
for its continuance.…
Notes
1. Fiction of the lost grant. Felgenhauer refers to the fiction of the lost grant. The
principle traces back to English law. 4-34 POWELL ON REAL PROPERTY § 34.10 (“In
early England the enjoyment had to have been ‘from time immemorial,’ and this date
came to be fixed by statute as the year 1189. Towards the close of the medieval period,
this theory was rephrased and an easement of this type was said to arise from a grant,
presumably made in favor of the claimant before the time of legal memory, but since
lost.”). The usual American approach is to ignore the fiction and simply apply rules of
prescription that largely track those of adverse possession. See id.
2. How do the elements of a prescriptive easement differ from the elements of adverse
possession? Why do you think they differ in this way? How do the resulting interests
differ?
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3. Easements acquired by the public. What happens if city pedestrians routinely cut
across a private parking lot? May an easement by prescription be claimed by the public
at large? Does it matter that the right asserted is not in the hands of any one person?
Here, too, the fiction of the lost grant may play a role in the willingness of courts to
entertain the possibility.
There is a split of authority as to whether a public highway may be created by
prescription. *** The majority view now is that a public easement may be
acquired by prescription. [***]2 J. Grimes, Thompson on Real Property § 342,
at 209 (1980).
Dillingham Commercial Co. v. City of Dillingham, 705 P.2d 410, 416 (Alaska 1985).
What then should the owner of a publicly accessible location do? The owners of
Rockefeller Center reportedly block off its streets one day per year in order to prevent
the loss of any rights to exclude. David W. Dunlap, “Closing for a Spell, Just to Prove
It’s
Ours,”
New
York
Times
(Oct.
28,
2011),
available
at
http://www.nytimes.com/2011/10/30/nyregion/lever-house-closes-once-a-year-tomaintain-its-ownership-rights.html?_r=0 (“But there is another significant hybrid:
purely private space to which the public is customarily welcome, at the owners’ implicit
discretion. These spaces include Lever House, Rockefeller Plaza and College Walk at
Columbia University, which close for part of one day every year.”). Another option is
to post a sign granting permission to enter (thus negating any element of adversity).
Some states approve this approach by statute. Cal. Civ. Code § 1008 (“No use by any
person or persons, no matter how long continued, of any land, shall ever ripen into an
easement by prescription, if the owner of such property posts at each entrance to the
property or at intervals of not more than 200 feet along the boundary a sign reading
substantially as follows: ‘Right to pass by permission, and subject to control, of owner:
Section 1008, Civil Code.’”).
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Image by Bryan Costales, used under a Creative Commons Attribution 4.0 International license.
4.
Irrevocable Licenses
An easement is distinct from a license. A license is permission from the owner to enter the
land. Because it is permissive, it is revocable. Many difficulties with distinguishing easements
from licenses arise when parties fail to clearly bargain over the right to use land. See, e.g., Willow
Tex, Inc. v. Dimacopoulos, 503 N.E.2d 99, 100 (N.Y. 1986) (“The writing must establish
unequivocally the grantor’s intent to give for all time to come a use of the servient estate to
the dominant estate. The policy of the law favoring unrestricted use of realty requires that
where there is any ambiguity as to the permanence of the restriction to be imposed on the
servient estate, the right of use should be deemed a license, revocable at will by the grantor,
rather than an easement.”).
C.
Transferring Easements
Easements appurtenant. Transferring easements appurtenant is simple; when the dominant
estate is conveyed, the rights of the easement come along. This is a natural consequence of
the principle that servitudes (such as easements) run with the land. A more complicated
problem concerns the division of the dominant estate into smaller parcels. The default
approach is to allow each parcel to enjoy the benefit of the easement. ***
Easements in gross. The modern view is that easements in gross are transferable, assuming
no contrary intent in their creation (e.g., that the benefit was intended to be personal to the
recipient). RESTATEMENT (THIRD) OF PROPERTY (SERVITUDES) § 4.6 cmt. (2000) (“Although
historically courts have often stated that benefits in gross are not transferable, American courts
have long carved out an exception for profits and easements in gross that serve commercial
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purposes. Under the rule stated in this section, the exception has now become the rule.”);
RESTATEMENT (FIRST) OF PROPERTY § 489 (1944) (commercial easements in gross, as distinct
from easements for personal satisfaction, are transferable); § 491 (noncommercial easements
in gross “determined by the manner or the terms of their creation”).
***
D.
Terminating Easements
Easements can be terminated in a variety of ways.
1. Unity of ownership. When the dominant and servient estates of an easement
appurtenant unite under one owner, the easement ends. Likewise an easement in gross
ends if the owner acquires an interest in the servient tenement that would have
provided independent authority to exercise the rights of the easement.
2. Release by the easement holder. The First Restatement would require a written
instrument under seal for an inter vivos release, while the modern Restatement simply
requires compliance with the Statute of Frauds.
3. Abandonment. Abandonment resembles a release. ***Abandonment may be inferred
by actions [or agreement of the parties.] ***
4. Estoppel. Estoppel may terminate an easement when 1) the owner of the servient
tenement acts in a manner that is inconsistent with the easement’s continuation; 2) the
acts are in foreseeable reasonable reliance on conduct by the easement holder; and 3)
allowing the easement to continue would work an unreasonable harm to the owner of
the servient property. Id. § 505.
5. Prescription. Just as an easement may be gained by prescription, so too may it be lost
by open and notorious adverse acts by the owner of the servient tenement that
interrupt the exercise of the easement for the prescription period.
6. Condemnation. The exercise of the eminent domain power to take the servient estate
creates the possibility of compensation for the easement owner.
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7. A tax deed. A tax deed is an instrument transferring title to property on which taxes
have gone unpaid following foreclosure of the resulting tax lien. Sometimes the
property transferred by tax deed will be encumbered by an easement. Section 509 of
the First Restatement provides that a tax deed will extinguish an easement in gross
encumbering the deeded property, but not an easement appurtenant encumbering the
deeded property.
8. Expiration, if the interest was for a particular time.
***
E.
Negative Easements/Conservation Easements
In the United States, most of the work that could have been done by negative easements is
largely performed by real covenants or equitable servitudes, which we take up in a future
reading. See RESTATEMENT (THIRD) OF PROPERTY (SERVITUDES) § 1.2 (“A ‘negative’
easement, the obligation not to use land in one’s possession in specified ways, has become
indistinguishable from a restrictive covenant, and is treated as such in this Restatement.”).
Nineteenth century English law gave negative easements a narrow domain. They were
available only to prevent the servient estate from restricting light, air, support, or the flow of
water of an artificial stream to the dominant estate. Id. § 1.2 cmt. h. Such easements were
likewise not widely embraced in the United States, where equitably enforced negative
covenants held in gross were disfavored.
***
The limitations of negative easements complicated efforts to create conservation and
preservation easements. Such easements tend to be held in gross (e.g., by a conservation
organization), and the common law prohibited equitable enforcement of negative covenants
held in gross. The law likewise was skeptical about expanding the categories for which negative
easements were available. RESTATEMENT (THIRD) OF PROPERTY (SERVITUDES) § 1.6 cmt. a
(2000). The problem was addressed by the Uniform Conservation Easement Act, which has
now been adopted by every state. 4 POWELL ON REAL PROPERTY § 34A.01.
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F.
14
Public Use Rights
Public prescriptive easements are not the only way to grant members of the public access
rights to land. The public trust doctrine addresses the public’s right to access certain natural
resources.
Matthews v. Bay Head Imp. Ass’n
471 A.2d 355 (N.J. 1984)
….In order to exercise these rights guaranteed by the public trust doctrine, the public must
have access to municipally-owned dry sand areas as well as the foreshore. The extension of
the public trust doctrine to include municipally-owned dry sand areas was necessitated by our
conclusion that enjoyment of rights in the foreshore is inseparable from use of dry sand
beaches.… We [previously] held that where a municipal beach is dedicated to public use, 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.” 61 N.J. at 309, 294 A.2d 47.…
We now address the extent of the public’s interest in privately-owned dry sand beaches. This
interest may take one of two forms. First, the public may have a right to cross privately owned
dry sand beaches in order to gain access to the foreshore. Second, this interest may be of the
sort enjoyed by the public in municipal beaches … namely, the right to sunbathe and generally
enjoy recreational activities.
Beaches are a unique resource and are irreplaceable. The public demand for beaches has
increased with the growth of population and improvement of transportation facilities.…
Exercise of the public’s right to swim and bathe below the mean high water mark may depend
upon a right to pass across the upland beach. Without some means of access the public right
to use the foreshore would be meaningless. To say that the public trust doctrine entitles the
public to swim in the ocean and to use the foreshore in connection therewith without assuring
the public of a feasible access route would seriously impinge on, if not effectively eliminate,
the rights of the public trust doctrine. This does not mean the public has an unrestricted right
to cross at will over any and all property bordering on the common property. The public
interest is satisfied so long as there is reasonable access to the sea.…
The bather’s right in the upland sands is not limited to passage. Reasonable enjoyment of the
foreshore and the sea cannot be realized unless some enjoyment of the dry sand area is also
allowed. The complete pleasure of swimming must be accompanied by intermittent periods
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15
of rest and relaxation beyond the water’s edge. The unavailability of the physical situs for such
rest and relaxation would seriously curtail and in many situations eliminate the right to the
recreational use of the ocean. This was a principal reason why in [earlier cases] we held that
municipally-owned dry sand beaches “must be open to all on equal terms ….” We see no reason
why rights under the public trust doctrine to use of the upland dry sand area should be limited
to municipally-owned property. It is true that the private owner’s interest in the upland dry
sand area is not identical to that of a municipality. Nonetheless, where use of dry sand is
essential or reasonably necessary for enjoyment of the ocean, the doctrine warrants the public’s
use of the upland dry sand area subject to an accommodation of the interests of the owner.
We perceive no need to attempt to apply notions of prescription, City of Daytona Beach v. TonaRama, Inc., 294 So.2d 73 (Fla.1974), dedication, Gion v. City of Santa Cruz, 2 Cal.3d 29, 465 P.2d
50, 84 Cal.Rptr. 162 (1970), or custom, State ex rel. Thornton v. Hay, 254 Or. 584, 462 P.2d 671
(1969), as an alternative to application of the public trust doctrine. Archaic judicial responses
are not an answer to a modern social problem. Rather, we perceive the public trust doctrine
not to be “fixed or static,” but one to “be molded and extended to meet changing conditions
and needs of the public it was created to benefit.” Avon, 61 N.J. at 309, 294 A.2d 47.
Precisely what privately-owned upland sand area will be available and required to satisfy the
public’s rights under the public trust doctrine will depend on the circumstances. Location of
the dry sand area in relati
