specially concurring.
I agree with the decision of the majority; however, I disagree with basing the decision upon the English doctrine of “customary rights.” In my opinion the facts in this case cannot be fitted into the outlines of that ancient doctrine. 6 Powell, Real Property 362, § 934, n 5 (1968); 2 Thompson, Real Property, 463, § 369, n 50 (1961); Gray, The Rule Against Perpetuities, ch 17 (4th ed 1942); 15 Harv L Rev 329, 332 (1903).
In my opinion the doctrine of “customary rights” is useful but only as an analogy. I am further of the opinion that “custom,” as distinguished from “customary rights,” is an important ingredient in establishing the rights of the public to the use of the dry sands.
*600I base tbe public’s right upon the following factors: (1) long usage by the public of the dry sands area, not necessarily on all the Oregon beaches, but wherever the public uses the beach; (2) a universal and long held belief by the public in the public’s right to such use; (3) long and universal acquiescence by the upland owners in such public use; and (4) the extreme desirability to the public of the right to the use of the dry sands. "When this combination exists, as it does here, I conclude that the public has the right to use the dry sands.
Admittedly, this is a new concept as applied to use of the dry sands of a beach; however, it is not new as applied to other public usages. In Luscher v. Reynolds, 153 Or 625, 56 P2d 1158 (1963), we held that regardless of who owns the bed of a lake, if it is capable of being boated, the public has the right to boat it.
“* * * There are hundreds of similar beautiful, small inland lakes in this state well adapted for recreational purposes, but which will never be used as highways of commerce in the ordinary acceptation of such terms. As stated in Lamprey v. State, 52 Minn. 181 (53 N. W. 1139, 38 Am. St. Rep. 541, 18 L. R. A. 670), quoted with approval in Guilliams v. Beaver Lake Club, supra, ‘To hand over all these lakes to private ownership, under any old or narrow test of navigability, would be a great wrong upon the public for all time, the extent of which cannot, perhaps, be now even anticipated.’ Regardless of the ownership of the bed, the public has the paramount right to the use of the waters of the lake for the purpose of transportation and commerce.” 153 Or at 635-636.
In Collins v. Gerhardt, 237 Mich 38, 211 NW 116 (1926), the defendant was wading Pine River and *601fishing. The plaintiff, who owned the land on both sides and the bed of Pine River, sued defendant for trespass. The court held for the defendant:
“From this it follows that the common-law doctrine, viz., that the right of fishing in navigable waters follows the ownership of the soil, does not prevail in this State. It is immaterial who owns the soil in our navigable rivers. The trust remains. From the beginning the title was impressed with this trust for the preservation of the public right of fishing and other public rights, which all citizens enjoyed in tidal waters under the common law. * * 237 Mich at 48.
These rights of the public in tidelands and in the beds of navigable streams have been called “jus publicum” and we have consistently and recently reaffirmed their existence. Corvallis Sand & Gravel v. Land Board, 250 Or 319, 335-337, 439 P2d 575 (1968); Smith Tug & Barge v. Columbia-Pac. Towing, 250 Or 612, 638, 443 P2d 205 (1968). The right of public use continues although title to the property passes into private ownership and nothing in the chain of title reserves or notifies anyone of this public right. Winston Bros. Co. v. State Tax Com., 156 Or 505, 510-511, 62 P2d 7 (1937).
In a recent treatise on waters and water rights the authors state:
“The principle that the public has an interest in tidelands and banks of navigable waters and a right to use them for purposes for which there is a substantial public demand may be derived from the fact that the public won a right to passage over the shore for access to the sea for fishing when this was the area of substantial public demand. As time goes by, opportunities for much more extensive uses of these lands become available to the public. The assertion by the public of *602a right to enjoy additional uses is met by the assertion that the public right is defined and limited by precedent based upon past uses and past demand. But such a limitation confuses the application of the principle under given circumstances with the principle itself.
“The law regarding the public use of property held in part for the benefit of the public must change as the public need changes. The words of Justice Cardozo, expressed in a different context nearly a half-century ago, are relevant today in our application of this law: ‘We may not suffer it to petrify at the cost of its animating principle.’ ” 1 Clark (ed-in-chief), Waters and Water Rights, at 202 (1967).