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oundaries of the dry sand area and . . . the character of the land,
which Units the use thereof to recreational uses connected with the
foreshore." (Thornton, 1974). Limiting the area to the foreshore made
tho boundaries core definable, but natural topography assisted in this
distinction. There are no cliffs on Mississippi's coast. The sand
beaches have receded and been replenished over time, particularly as a
result of several oajor hurricanes. And on Deer Island, the beach area
has been used for beach activities and the woods for other recreational
activities such as camping. These factors could create problems of
certainty.
The Thornton court found that a custoo was obligatory so long as the
landowner did not have an option to recognize the public right or
Ignore it. Two points of Inquiry are relevant to obligation: (1) were
the lands trusted as of right and uniformly with similarly situated
lands, and (2) did the landowner object? Public behavior on
Mississippi beaches evidences a belief that there is a right to use
beach areas, particularly in light of a lack of objection on the part
of private landowners. Finally, the custoo must be consistent with the
laws and customs. The Oregon court's analysis provided no guidance on
this prong of the test as they found the custoo to be consistent
without giving a rationale.
Florida has also applied custom to protect public rights to beach
areas. (Tona-Rama, Inc., 1974). However, the court identified only
four elements: antiquity, reasonableness, continuity, and freedom froo
dispute. At Issue was whether the owner could build an observation
tower on the dry sand area. Even though the requirements for custom
were met, the court ruled in favor of the owner because presence of the
observation would not conflict with other recreational uses of the
beach by tho public.
The doctrine of custom, then, is a viable legal tool for guaranteeing
public access, but the burden of proof for those asserting the public
right is core difficult than under Implied dedication.
Conclusion
Under the public trust doctrine, the public has the right to swim,
wade, or otherwise reasonably use the tidal waters of Hisslsslppi so
long as they remain below the mean high tide mark. Even though
submerged lands In sooe Instances may be reclaimed and sold, it is
unlikely that the court will allow wholesale divestiture of public
trust property. But If the public is to have a legally protected right
to spread a blanket on the sand, or engage in other recreational
activities, a theory other than the public trust doctrine is needed.
The theory of implied dedication is tailor-made for protecting beach
access rights in the public. It requires behavior on the part of the
owner that evidences an intent to dedicate and the public's acceptance
through acquiescence to public use. The rights thus gained can be in
the nature of fee title, or an easement to use the property for
particular purposes. If an easement is found to exist, the owner is
forbidden from acting Inconsistently with the rights of the public.
And at the same tioe, the public must limit their activities to those
that come within the scope of the dedication.
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