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STATE EX REL. THORNTON v. HAY

462 P.2d 671 (1969)

STATE of Oregon, ex rel. Robert Y. Thornton, Attorney General of the State of Oregon; the State Highway Commission, Composed of Glenn L. Jackson, Fred W. Hill and Thaddeus B. Bruno; and Forrest Cooper, Oregon State Highway Engineer, Respondents, v. William G. HAY and Georgianna F. Hay, Husband and Wife, Doing Business As Surfsand Motel, and Benjamin Franklin Federal Savings and Loan Association of Portland, a Corporation, Appellants.

Supreme Court of Oregon.

Decided December 19, 1969.

Attorney(s) appearing for the Case

Gerard K. Drummond, Portland, argued the cause for appellants. With him on the briefs were Kell & Alterman and Rives, Bonyhadi & Hall, Portland.

Peter S. Herman, Asst. Atty. Gen., Salem, argued the cause for respondents. With him on the supplemental answering brief was Lee Johnson, Atty. Gen., Salem. On the respondents' brief were Robert Y. Thornton, then Atty. Gen., and G.E. Rohde, Chief Counsel, F.C. McKinney, Asst. Counsel, and Philip J. Engelgau, Asst. Atty. Gen., Oregon State Highway Department, Salem.

C. Ray Johnson, George P. Winslow, Jr., and George P. Winslow, Tillamook, filed a brief as amici curiae.

Before PERRY, C.J., and McALLISTER, O'CONNELL, GOODWIN, DENECKE, and HOLMAN, JJ.

GOODWIN, Justice.

William and Georgianna Hay, the owners of a tourist facility at Cannon Beach, appeal from a decree which enjoins them from constructing fences or other improvements in the dry-sand area between the sixteen-foot elevation contour line and the ordinary high-tide line of the Pacific Ocean.

The issue is whether the state has the power to prevent the defendant landowners from enclosing the dry-sand area contained within the legal description of...

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