pile’s appeal.

Opinion by

Mr. Justice Williams,

The learned judge of the court below was right in holding that the wall in controversy was not a party wall. It was not intended to be. The defendants were building a factory and under the advice of their architect decided to build within their own lines in order to avoid the danger of injury to others from vibration which might result from the use of their machinery. They called upon the district surveyor to locate their line and built within it as so ascertained. Subsequent surveys by city surveyors have determined that the line was not accurately located at first but was about one and a half inches over on the plaintiffs. This leaves the ends of the stones used in the foundation wall projecting into the plaintiffs’ lands below the surface one and three eighths inches. This unintentional intrusion into the plaintiffs’ close is the narrow foundation on which this bill in equity rests. The wall resting on the stone foundation is conceded to be within the defendants’ line. The defendants offered nevertheless to make it a party wall by agreement and give to plaintiffs free use of it, as such, on condition that the windows on the third and fourth floors should remain open *300until the plaintiff should desire to use the wall. This offer was declined. The trespass was then to be remedied in one of two wa}'S. It could be treated with the plaintiffs’ consent as a permanent trespass and compensated for in damages, or the defendants could be compelled to remove the offending ends of the stones to the other side of the line. The plaintiffs insisted upon the latter course, and the court below has by its decree ordered that this should be done. The defendants then sought permission to go on the plaintiffs’ side of the line and chip off the projecting ends, offering to pay for all inconvenience or injury the plaintiffs or their tenants might suffer by their so doing. This they refused. Nothing remained but to take down and rebuild the entire wall from the defendants’ side and with their building resting on it. This the decree requires, but in view of the course of the litigation the learned judge divided the costs. This is the chief ground of complaint on this appeal. Costs are not of course in equity. They may be given or withheld as equity and good conscience require. It often happens that a chancellor is constrained to enforce a legal right under circumstances that involve hardship to the defendant, and in such cases it is, as it should be, common to dispose of the costs upon a consideration of all the circumstances and the position and conduct of the parties. The costs in this case were within the power of the chancellor. They were disposed of in the exercise of his official discretion, and we see no reason to doubt that they were disposed of properly. The decree is affirmed. The costs of this appeal to be paid by the appellant.

pedbick’s appeal.

Opinion by

Mr. Justice Williams,

April 8, 1895:

This is an appeal from the same decree just considered on the appeal of J. M. Pile, et al. It is not denied that the foundation wall on which the appellant has built was located under a mistake made by the district surveyor, and does in fact project slightly into the plaintiffs’ land. For one inch and three eighths the ends of the stones in the wall are said to project beyond the division line. The defendants have no right at law or in equity to occupy land that does not belong to them and we do not see how the court below could have done otherwise than recognize and act upon this principle. They must remove *301their wall so that it shall be upon their land. This the court directed should be done within a reasonable time. To avoid further controversy over this subject we will so far modify the decree as to permit such removal to be made within one year from the date of filing hereof. In all other respects the decree is affirmed. The appellants to pay all costs made by them upon this appeal.

POSNER, Chief Judge.

The plaintiffs — an ophthalmic clinic known as the “Desniek Eye Center” after its owner, Dr. Desniek, and two ophthalmic surgeons employed by the clinic, Glazer and Simon— appeal from the dismissal of their suit against the ABC television network, a producer of the ABC program PrimeTime Live named Entine, and the program’s star reporter, Donaldson. The suit is for trespass, defamation, and other torts arising out of the production and broadcast of a program segment of PrimeTime Live that was highly critical of the Desniek Eye Center. Federal jurisdiction is based primarily on diversity of citizenship (though there is one federal claim), with Illinois law, and to a lesser extent Wisconsin and Indiana law, supplying the substantive rules on which decision is to be based. The suit was dismissed for failure to state a claim. See Desnick v. Capital Cities/ABC, Inc., 851 F.Supp. 303 (N.D.Ill.1994). The record before us is limited to the complaint and to a transcript, admitted to be accurate, of the eomplained-about segment.

In March of 1993 Entine telephoned Dr. Desniek and told him that PrimeTime Live wanted to do a broadcast segment on large cataract practices. The Desniek Eye Center has 25 offices in four midwestern states and performs more than 10,000 cataract operations a year, mostly on elderly persons whose cataract surgery is paid for by Medicare. *1348The complaint alleges — and in the posture of the case we must take the allegations to be true, though of course they may not be — that Entine told Desnick that the segment would not be about just one cataract practice, that it would not involve “ambush” interviews or “undercover” surveillance, and that it would be “fair and balanced.” Thus reassured, Desnick permitted an ABC crew to videotape the Desnick Eye Center’s main premises in Chicago, to film a cataract operation “live,” and to interview doctors, technicians, and patients. Desnick also gave Entine a videotape explaining the Desnick Eye Center’s services.

Unbeknownst to Desnick, Entine had dispatched persons equipped with concealed cameras to offices of the Desnick Eye Center in Wisconsin and Indiana. Posing as patients, these persons — seven in all — requested eye examinations. Plaintiffs Glazer and Simon are among the employees of the Des-nick Eye Center who were secretly videotaped examining these “test patients.”

The program aired on June 10. Donaldson introduces the segment by saying, “We begin tonight with the story of a so-called ‘big cutter,’ Dr. James Desnick.... [I]n our undercover investigation of the big cutter you’ll meet tonight, we turned up evidence that he may also be a big charger, doing unnecessary cataract surgery for the money.” Brief interviews with four patients of the Desnick Eye Center follow. One of the patients is satisfied (“I was blessed”); the other three are not — one of them says, “If you got three eyes, he’ll get three eyes.” Donaldson then reports on the experiences of the seven test patients. The two who were under 65 and thus not eligible for Medicare reimbursement were told they didn’t need cataract surgery. Four of the other five were told they did. Glazer and Simon are shown recommending cataract surgery to them. Donaldson tells the viewer that PrimeTime Live has hired a professor of ophthalmology to examine the test patients who had been told they needed cataract surgery, and the professor tells the viewer that they didn’t need it — with regard to one he says, “I think it would be near malpractice to do surgery on him.” Later in the segment he denies that this could just be an honest difference of opinion between professionals.

An ophthalmic surgeon is interviewed who had turned down a job at the Desnick Eye Center because he would not have been “able to screen who I was going to operate on.” He claims to have been told by one of the doctors at the Center (not Glazer or Simon) that “as soon as I reject them [i.e., turn down a patient for cataract surgery], they’re going in the next room to get surgery.” A former marketing executive for the Center says Des-nick took advantage of “people who had Alzheimer’s, people who did not know what planet they were on, people whose quality of life wouldn’t change one iota by having cataract surgery done.” Two patients are interviewed who report miserable experiences with the Center — one claiming that the doctors there had failed to spot an easily visible melanoma, another that as a result of unnecessary cataract surgery her “eye ruptured,” producing “running pus.” A former employee tells the viewer that Dr. Desnick alters patients’ medical records to show they need cataract surgery — for example, changing the record of one patient’s vision test from 20/30 to 20/80 — and that he instructs all members of his staff to use pens of the same color in order to facilitate the alteration of patients’ records.

One symptom of cataracts is that lights of normal brightness produce glare. Glazer is shown telling a patient, “You know, you’re getting glare. I would say we could do significantly better [with an operation].” And Simon is shown asking two patients, “Do you ever notice any glare or blurriness when you’re driving, or difficulty with the signs?” Both say no, and immediately Donaldson tells the viewer that “the Desnick Center uses a very interesting machine, called an auto-refractor, to determine whether there are glare problems.” Donaldson demonstrates the machine, then says that “Paddy Kalish is an optometrist who says that when he worked at the Desnick clinic from 1987 to 1990, the machine was regularly rigged. He says he watched a technician tamper with the machine, this way” — and then Kalish gives a demonstration, adding, “This happened routinely for all the older patients that came in *1349for the eye exams.” Donaldson reveals that Dr. Desniek has obtained a judgment against Kalish for defamation, but adds that “Kalish is not the only one to tell us the machine may have been rigged. PrimeTime talked to four other former Desniek employees who say almost everyone failed the glare test.”

There is more, including mention of a proceeding begun by the Illinois Medical Board in which Dr. Desniek is charged with a number of counts of malpractice and deception— and an “ambush” interview. Donaldson accosts Desniek at O’Hare Airport and cries, “Is it true, Doctor, that you changed medical records to show less vision than your patients actually have? We’ve been told, Doctor, that you’ve changed the glare machine so we have a different reading. Is that correct? Doctor, why won’t you respond to the questions?”

The plaintiffs’ claims fall into two distinct classes. The first arises from the broadcast itself, the second from the means by which ABC and Entine obtained the information that they used in the broadcast. The first is a class of one. The broadcast is alleged to have defamed the three plaintiffs by charging that the glare machine is tampered with. No other aspect of the broadcast is claimed to be tortious. The defendants used excerpts from the Desniek videotape in the broadcast, and the plaintiffs say that this was done without Dr. Desnick’s permission. But they do not claim that in showing the videotape without authorization the defendants infringed copyright, cast the plaintiffs in a false light, or otherwise invaded a right, although they do claim that the defendants had obtained the videotape fraudulently (a claim in the second class). And they do not claim that any of the other charges in the broadcast that are critical of them, such as that they perform unnecessary surgery or that Dr. Desniek tampers with patients’ medical records, are false.

We begin with the charge of defamation, which the parties agree is governed by Illinois law. The district judge ruled that Glazer and Simon could not establish defamation concerning the tampering with the glare machine because the viewer would not think that they were being accused of doing the tampering. Courts used to strain to find that a defamatory statement that did not actually name the plaintiff might reasonably be understood to be about someone else; this was the “innocent construction” rule. John v. Tribune Co., 24 Ill.2d 437, 181 N.E.2d 105, 108 (1962). But in modern law it is enough if the audience would be likely to think that the defendant was talking about the plaintiff. Chapski v. Copley Press, 92 Ill.2d 344, 65 Ill.Dec. 884, 442 N.E.2d 195 (1982); Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1226 (7th Cir.1993) (applying Illinois law).

Whether it would think that or not is treated by the Illinois courts as a question of law, to be decided by the judge subject to plenary appellate review. Chapski v. Copley Press, supra, 65 Ill.Dec. at 888, 442 N.E.2d at 199. We have done the same in diversity cases in which Illinois law supplies the rule of decision, Babb v. Minder, 806 F.2d 749, 757 and n. 3 (7th Cir.1986); Action Repair, Inc. v. American Broadcasting Cos., 776 F.2d 143, 145 (7th Cir.1985), but without remarking that this question — whether application of the innocent construction rule is a question of fact or of law, and the scope of appellate review — is one of federal, not of state, law. For it is a question about the control of the jury and the relation of the appellate to the trial court, rather than about the substantive law of defamation. See Mayer v. Gary Partners & Co., 29 F.3d 330 (7th Cir.1994); Coplay Cement Co. v. Willis & Paul Group, 983 F.2d 1435, 1438 (7th Cir.1993). But as no party in the present case has questioned the propriety of plenary review, we shall leave the question whether the federal rule should be identical to Illinois’s rule for another day.

The part of the broadcast about the tampering with the glare machine follows immediately upon Dr. Simon’s asking test patients about glare; and earlier Dr. Glazer had been shown asking the same thing of another test patient. The inference that Glazer and Simon are mixed up in the tampering is not inevitable, but it is sufficiently probable to entitle them to sue. Rosner v. Field Enterprises, Inc., 205 Ill.App.3d 769, 151 Ill.Dec. 154, 176, 564 N.E.2d 131, 153 (1990). Kalish tells the viewer that the glare machine is tampered with in all eases involv*1350ing elderly patients, and hence by implication in cases handled by Drs. Glazer and Simon. And elsewhere the broadcast segment has insinuated that any doctor who works for the Desnick Eye Center is unethical. It is true that Kalish says that technicians do the tampering. But presumably they do so under a doctor’s direction. Most viewers would infer that Glazer and Simon, if they did not actually change the setting on the machine themselves, were complicit with the actual tamperer. And even if this were wrong, it would not justify dismissal of the defamation count with respect to the other plaintiff, the Des-nick Eye Center itself.

The judge also ruled, however, that the defamation count failed because the allegation that the plaintiffs tampered with the glare machine did not significantly increase the damage to their reputations inflicted by the parts of the broadcast segment they do not challenge. If a false accusation cannot do any incremental harm to the plaintiffs deserved reputation because the truth if known would have demolished his reputation already, he has not been harmed by the false accusation and therefore has no remedy. Haynes v. Alfred A. Knopf, Inc., supra, 8 F.3d at 1227-29. This is provided, however, that the false accusation is closely related to the true facts. A sexual deviant might have a worse reputation than an embezzler, but it would not be a defense to a charge of falsely accusing a person of being an embezzler that while he is not an embezzler, he is a sexual deviant, and that is worse. Such a rule “would strip people who had done bad things of any legal protection against being defamed; they would be defamation outlaws.” Id. at 1228; see also Liberty Lobby, Inc. v. Anderson, 746 F.2d 1563, 1568 and n. 6 (D.C.Cir.1984), vacated on other grounds, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The doctrine that we have been describing goes by the name of “substantial truth.” Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 516-17, 111 S.Ct. 2419, 2432-33, 115 L.Ed.2d 447 (1991); Lemons v. Chronicle Publishing Co., 253 Ill.App.3d 888, 192 Ill.Dec. 634, 636, 625 N.E.2d 789, 791 (1993); Moldea v. New York Times Co., 15 F.3d 1137, 1150, modified on other grounds, 22 F.3d 310, 313 (D.C.Cir.1994). Here is an example from Haynes. The defendants’ book said that Haynes had lost a job or jobs because of drinking. What was true was that, during a period in which he was indeed drinking heavily, he lost his job because his supervisor found an unopened bottle of liquor (which Haynes had received from a friend) in his pocket. Moreover, the author had left out of the book a number of very damaging facts about Haynes that later emerged in pretrial discovery, including the fact that he had been arrested and jailed for assaulting a police officer after drinking. Everything considered, the literal truth about Haynes’s drinking was neither materially different from, nor significantly less damning than, the falsehood.

Haynes had been decided on summary judgment, after the defendants had obtained the complete facts about Mr. Haynes in discovery. We said that the question whether a defamatory work is substantially true although erroneous in some details is ordinarily a jury question but that given the facts that had emerged in discovery no reasonable jury could find a significant incremental harm. 8 F.3d at 1228. In this ease there has been no discovery, so dismissal was justified only if it is clear from the transcript of the broadcast segment itself that the plaintiffs could not have been harmed by the charge that they tampered with the glare machine. This may seem clear because they do not challenge the other charges in the broadcast — such as that the Desnick Eye Center performs unnecessary surgery, sometimes with harmful results, that it preys on ignorant old people, and that Dr. Desnick alters patients’ records to show a need for cataract surgery where there is none. These are serious charges, but unlike the situation in the Haynes case they neither are admitted nor are established by uneontested affidavits or other undisputed or indisputable evidence. Given the obstacles to proving defamation, the failure to mount a legal challenge to a defamatory statement cannot be considered an admission that the statement is true.

And even if all these other charges had been admitted or demonstrated to be true, *1351we could not say on this bare record that the charge of rigging the glare machine adds nothing to them. The other charges, even the alteration of patients’ records, either fall into a gray area where disagreement merges with misconduct and disappointment in results with charges of malpractice, or are easily explained away without having to be denied — Desnick claimed merely to be correcting erroneous entries in patients’ records made by his technicians. There can be no explaining away the alteration of the settings on an ophthalmic machine so that a person with normal eyesight (Donaldson, who demonstrated the effect of the tampering with the machine on himself) experiences the symptoms of cataract. It is a particularly shocking charge to make against a clinic and its physicians. It would be one thing to accuse a radiologist of misreading x-rays, and another to accuse him of altering his x-ray machine so that a normal person was shown with a tumor on his lung.

Of course, when additional facts about the Desnick Eye Center are brought to light in discovery, it may turn out either that the machine was indeed tampered with or that, even if it was not, the plaintiffs did so many other bad things in the line of Medicare fraud that the tampering fades into insignificance. But this is not so clear at this stage that the defamation count of the complaint can properly be dismissed.

The second class of claims in this ease concerns, as we said, the methods that the defendants used to create the broadcast segment. There are four such claims: that the defendants committed a trespass in insinuating the test patients into the Wisconsin and Indiana offices of the Desnick Eye Center, that they invaded the right of privacy of the Center and its doctors at those offices (specifically Glazer and Simon), that they violated federal and state statutes regulating electronic surveillance, and that they committed fraud by gaining access to the Chicago office by means of a false promise that they would present a “fair and balanced” picture of the Center’s operations and would not use “ambush” interviews or undercover surveillance.

To enter upon another’s land without consent is a trespass. The force of this rule has, it is true, been diluted somewhat by concepts of privilege and of implied consent. But there is no journalists’ privilege to trespass. Prahl v. Brosamle, 98 Wis.2d 130, 295 N.W.2d 768, 780-81 (App.1980); Le Mistral, Inc. v. Columbia Broadcasting System, 61 A.D.2d 491, 402 N.Y.S.2d 815 (1978). And there can be no implied consent in any non-fietitious sense of the term when express consent is procured by a misrepresentation or a misleading omission. The Desnick Eye Center would not have agreed to the entry of the test patients into its offices had it known they wanted eye examinations only in order to gather material for a television exposé of the Center and that they were going to make secret videotapes of the examinations. Yet some eases, illustrated by Martin v. Fidelity & Casualty Co., 421 So.2d 109, 111 (Ala.1982), deem consent effective even though it was procured by fraud. There must be something to this surprising result. Without it a restaurant critic could not conceal his identity when he ordered a meal, or a browser pretend to be interested in merchandise that he could not afford to buy. Dinner guests would be trespassers if they were false friends who never would have been invited had the host known their true character, and a consumer who in an effort to bargain down an automobile dealer falsely claimed to be able to buy the same car elsewhere at a lower price would be a trespasser in the dealer’s showroom. Some of these might be classified as privileged trespasses, designed to promote competition. Others might be thought justified by some kind of implied consent — the restaurant critic for example might point by way of analogy to the use of the “fair use” defense by book reviewers charged with copyright infringement and argue that the restaurant industry as a whole would be injured if restaurants could exclude critics. But most such efforts at rationalization would be little better than evasions. The fact is that consent to an entry is often given legal effect even though the entrant has intentions that if known to the owner of the property would cause him for perfectly understandable and generally ethical or at least lawful reasons to revoke his consent.

*1352The law’s willingness to give effect to consent procured by fraud is not limited to the tort of trespass. The Restatement gives the example of a man who obtains consent to sexual intercourse by promising a woman $100, yet (unbeknownst to her, of course) he pays her with a counterfeit bill and intended to do so from the start. The man is not guilty of battery, even though unconsented-to sexual intercourse is a battery. Restatement (Second) of Torts § 892B, illustration 9, pp. 373-74 (1979). Yet we know that to conceal the fact that one has a venereal disease transforms “consensual” intercourse into battery. Crowell v. Crowell, 180 N.C. 516, 105 S.E. 206 (1920). Seduction, standardly effected by false promises of love, is not rape, Pletnikoff v. State, 719 P.2d 1039, 1043 (Alaska App.1986); intercourse under the pretense of rendering medical or psychiatric treatment is, at least in most states. Compare State v. Tizard, 1994 WL 630498, *8-10 (Tenn.Crim.App. Nov. 10, 1994), with Boro v. Superior Court, 163 Cal.App.3d 1224, 210 Cal.Rptr. 122 (1985). It certainly is battery. Bowman v. Home Life Ins. Co., 243 F.2d 331 (3d Cir.1957); Commonwealth v. Gregory, 132 Pa.Super. 507, 1 A.2d 501 (1938). Trespass presents close parallels. If a homeowner opens his door to a purported meter reader who is in fact nothing of the sort — just a busybody curious about the interior of the home — the homeowner’s consent to his entry is not a defense to a suit for trespass. See State v. Donahue, 93 Or.App. 341, 762 P.2d 1022, 1025 (1988); Bouillon v. Laclede Gaslight Co., 148 Mo.App. 462, 129 S.W. 401, 402 (1910). And likewise if a competitor gained entry to a business firm’s premises posing as a customer but in fact hoping to steal the firm’s trade secrets. Rockwell Graphic Systems, Inc. v. DEV Industries, Inc., 925 F.2d 174, 178 (7th Cir.1991); E.I. duPont deNemours & Co. v. Christopher, 431 F.2d 1012, 1014 (5th Cir.1970).

How to distinguish the two classes of case — the seducer from the medical impersonator, the restaurant critic from the meter-reader impersonator? The answer can have nothing to do with fraud; there is fraud in all the eases. It has to do with the interest that the torts in question, battery and trespass, protect. The one protects the inviolability of the person, the other the inviolability of the person’s property. The woman who is seduced wants to have sex with her seducer, and the restaurant owner wants to have customers. The woman who is victimized by the medical impersonator has no desire to have sex with her doctor; she wants medical treatment. And the homeowner victimized by the phony meter reader does not want strangers in his house unless they have authorized service functions. The dealer’s objection to the customer who claims falsely to have a lower price from a competing dealer is not to the physical presence of the customer, but to the fraud that he is trying to perpetuate. The lines are not bright — they are not even inevitable. They are the traces of the old forms of action, which have resulted in a multitude of artificial distinctions in modern law. But that is nothing new.

There was no invasion in the present ease of any of the specific interests that the tort of trespass seeks to protect. The test patients entered offices that were open to anyone expressing a desire for ophthalmic services and videotaped physicians engaged in professional, not personal, communications with strangers (the testers themselves). The activities of the offices were not disrupted, as in People v. Segal, 78 Misc.2d 944, 358 N.Y.S.2d 866 (Crim.Ct.1974), another case of gaining entry by false pretenses. See also Le Mistral, Inc. v. Columbia Broadcasting System, supra, 402 N.Y.S.2d at 81 n. 1. Nor was there any “inva[sion of] a person’s private space,” Haynes v. Alfred A Knopf, Inc., supra, 8 F.3d at 1229, as in our hypothetical meter-reader ease, as in the famous case of De May v. Roberts, 46 Mich. 160, 9 N.W. 146 (1881) (where a doctor, called to the plaintiffs home to deliver her baby, brought along with him a friend who was curious to see a birth but was not a medical doctor, and represented the friend to be his medical assistant), as in one of its numerous modem counterparts, Miller v. National Broadcasting Co., 187 Cai.App.3d 1463, 232 Cal.Rptr. 668, 679 (1986), and as in Dietemann v. Time, Inc., 449 F.2d 245 (9th Cir.1971), on which the plaintiffs in our case rely. Diete-mann involved a home. Trae, the portion *1353invaded was an office, where the plaintiff performed quack healing of nonexistent ailments. The parallel to this case is plain enough, but there is a difference. Diete-mann was not in business, and did not advertise his services or charge for them. His quackery was private.

No embarrassingly intimate details of anybody's life were publicized in the present case. There was no eavesdropping on a private conversation; the testers recorded their own conversations with the Desnick Eye Center's physicians. There was no violation of the doctor-patient privilege. There was no theft, or intent to steal, trade secrets; no disruption of decorum, of peace and quiet; no noisy or distracting demonstrations. Had the testers been undercover FBI agents, there would have been no violation of the Fourth Amendment, because there would have been no invasion of a legally protected interest in property or privacy. United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971); Lewis v. United States, 385 U.S. 206, 211, 87 S.Ct. 424, 427-28, 17 L.Ed.2d 312 (1966); Forster v. County of Santa Barbara, 896 F.2d 1146, 1148-49 (9th Cir.1990); Northside Realty Associates, Inc. v. United States, 605 F.2d 1348, 1355 (5th Cir.1979). "Testers" who pose as prospective home buyers in order to gather evidence of housing discrimination are not trespassers even if they are private persons not acting under color of law. Cf. id. at 1355. The situation of the defendants' "testers" is analogous. Like testers seeking evidence of violation of anti-discrimination laws, the defendants' test patients gained entry into the plaintiffs' premises by misrepresenting their purposes (more precisely by a misleading omission to disclose those purposes). But the entry was not invasive in the sense of infringing the kind of interest of the plaintiffs that the law of trespass protects; it was not an interference with the ownership or possession of land. We need not consider what if any difference it would make if the plaintiffs had festooned the premises with signs forbidding the entry of testers or other snoops. Perhaps none, see United States v. Centennial Builders, Inc., 747 F.2d 678, 683 (11th Cir.1984), but that is an issue for another day.

What we have said largely disposes of two other claims-infringement of the right of privacy, and illegal wiretapping. The right of privacy embraces several distinct interests, but the only ones conceivably involved here are the closely related interests in concealing intimate personal facts and in preventing intrusion into legitimately private activities, such as phone conversations. Haynes v. Alfred A. Knopf, Inc., supra, 8 F.3d at 1229; Zinda v. Louisiana Pacific Corp., 149 Wis.2d 913, 440 N.W.2d 548, 555 (1989); Doe v. Methodist Hospital, 639 N.E.2d 683, 685 (Ind.App.1994). As we have said already, no intimate personal facts concerning the two individual plaintiffs (remember that Dr. Desnick himself is not a plaintiff) were revealed; and the only conversations that were recorded were conversations with the testers themselves. Thomas v. Pearl, 998 F.2d 447, 452 (7th Cir.1993).

The federal and state wiretapping statutes that the plaintiffs invoke allow one party to a conversation to record the conversation unless his purpose in doing so is to commit a crime or a tort or (in the case of the state, but not the federal, law) to do "other injurious acts." 18 U.S.C. § 2511(2)(d); Wis.Stat. § 968.31(2)(c); Thomas v. Pearl, supra, 998 F.2d at 451; State v. Waste Management of Wisconsin, Inc., 81 Wis.2d 555, 261 N.W.2d 147, 154 (1978). The defendants did not order the camera-armed testers into the Desnick Eye Center's premises in order to commit a crime or tort. Maybe the program as it was eventually broadcast was tortious, for we have said that the defamation count was dismissed prematurely. But there is no suggestion that the defendants sent the testers into the Wisconsin and Illinois offices for the purpose of defaming the plaintiffs by charging tampering with the glare machine. The purpose, by the plaintiffs' own account, was to see whether the Center's physicians would recommend cataract surgery on the testers. By the same token it was not to injure the Desnick Eye Center, unless the public exposure of misconduct is an "injurious act" within the meaning of the Wisconsin statute. Telling the world the truth about a Medicare *1354fraud is hardly what the framers of the statute could have had in mind in forbidding a person to record his own conversations if he was trying to commit an “injurious act.” See id., 261 N.W.2d at 154 and n. 17.

Last is the charge of fraud in the defendants’ gaining entry to the Chicago office and being permitted while there to interview staff and film a cataract operation, and in their obtaining the Desnick Eye Center’s informational videotape. The alleged fraud consists of a series of false promises by the defendants — that the broadcast segment would be fair and balanced and that the defendants would not use “ambush” interviews or undercover surveillance tactics in making the segment. Since the promises were given in exchange for Desnick’s permission to do things calculated to enhance the value of the broadcast segment, they were, one might have thought, supported by consideration and thus a basis for a breach of contract suit. That we need not decide. The plaintiffs had a claim for breach of contract in their complaint and it survived the motion to dismiss, but they voluntarily dismissed the claim so that there would be a final judgment from which they could appeal. The only issue before us is fraud.

Unlike most states nowadays, Illinois does not provide a remedy for fraudulent promises (“promissory fraud”) — unless they are part of a “scheme” to defraud. Willis v. Atkins, 412 Ill. 245, 106 N.E.2d 370, 377-78 (1952); Stamatakis Industries, Inc. v. King, 165 Ill.App.3d 879, 117 Ill.Dec. 419, 421-22, 520 N.E.2d 770, 772-73 (1987); Bower v. Jones, 978 F.2d 1004, 1011-12 (7th Cir.1992). The distinction between a mere promissory fraud and a scheme of promissory fraud is elusive, and has caused, to say the least, considerable uncertainty, as even the Illinois cases acknowledge. E.g., Stamatakis Industries, Inc. v. King, supra, 117 Ill.Dec. at 421-22, 520 N.E.2d at 772-73; Vance Pearson, Inc. v. Alexander, 86 Ill.App.3d 1105, 42 Ill.Dec. 204, 209, 408 N.E.2d 782, 787 (1980). Some cases suggest that the exception has swallowed the rule. Id., 42 Ill.Dec. at 209, 408 N.E.2d at 787; Lovejoy Electronics, Inc. v. O’Berto, 873 F.2d 1001, 1004 (7th Cir.1989); Price v. Highland Community Bank, 722 F.Supp. 454, 460 (N.D.Ill.1989). Others seem unwUUng to apply the exception. For a good discussion, see Michael J. PoleUe, “An Ilhnois’ Choice: FossU Law or an Action for Promissory Fraud?” 32 DePaul L.Rev. 565, 578-88 (1983).

The distinction certainly is unsatisfactory, but it reflects an understandable ambivalence, albeit one shared by few other states, about allowing suits to be based on nothing more than an aUegation of a fraudulent promise. There is a risk of turning every breach of contract suit into a fraud suit, of circumventing the limitation that the doctrine of consideration is supposed however ineptly to place on making all promises legally enforceable, and of thwarting the rule that denies the award of punitive damages for breach of contract. A great many promises belong to the realm of puffery, bragging, “mere words,” and casual bonhomie, rather than to that of serious commitment. They are not intended to and ordinarily do not induce reUance; a healthy skepticism is a better protection against being fooled by them than the costly remedies of the law. In any event it is not our proper role as a federal court in a diversity suit to read “scheme” out of Illinois law; we must give it some meaning. Our best interpretation is that promissory fraud is actionable only if it either is particularly egregious or, what may amount to the same thing, it is embedded in a larger pattern of deceptions or enticements that reasonably induces reliance and against which the law ought to provide a remedy.

We cannot view the fraud alleged in this case in that light. Investigative journalists well known for ruthlessness promise to wear kid gloves. They break their promise, as any person of normal sophistication would expect. If that is “fraud,” it is the kind against which potential victims can easily arm themselves by maintaining a minimum of skepticism about journalistic goals and methods. Des-nick, needless to say, was no tyro, or child, or otherwise a member of a vulnerable group. He is a successful professional and entrepreneur. No legal remedies to protect him from what happened are required, or by Illinois provided. It would be different if the false promises were stations on the way to taking *1355Desnick to the cleaners. An elaborate artifice of fraud is the central meaning of a scheme to defraud through false promises. The only scheme here was a scheme to expose publicly any bad practices that the investigative team discovered, and that is not a fraudulent scheme.

Anyway we cannot see how the plaintiffs could have been harmed by the false promises. We may assume that had the defendants been honest, Desnick would have refused to admit the ABC crew to the Chicago premises or given Entine the videotape. But none of the negative parts of the broadcast segment were supplied by the visit to the Chicago premises or came out of the informational videotape, and Desnick could not have prevented the ambush interview or the undercover surveillance. The so-called fraud was harmless.

One further point about the claims concerning the making of the program segment, as distinct from the content of the segment itself, needs to be made. The Supreme Court in the name of the First Amendment has hedged about defamation suits, even when not brought by public figures, with many safeguards designed to protect a vigorous market in ideas and opinions. Today’s “tabloid” style investigative television reportage, conducted by networks desperate for viewers in an increasingly competitive television market (see Capital Cities/ABC, Inc. v. FCC, 29 F.3d 309 (7th Cir.1994)), constitutes — although it is often shrill, one-sided, and offensive, and sometimes defamatory — an important part of that market. It is entitled to all the safeguards with which the Supreme Court has surrounded liability for defamation. And it is entitled to them regardless of the name of the tort, see, e.g., Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988), and, we add, regardless of whether the tort suit is aimed at the content of the broadcast or the production of the broadcast. If the broadcast itself does not contain actionable defamation, and no established rights are invaded in the process of creating it (for the media have no general immunity from tort or contract liability, Cohen v. Cowles Media Co., 501 U.S. 663, 669-70, 111 S.Ct. 2513, 2518-19, 115 L.Ed.2d 586 (1991); Le Mistral, Inc. v. Columbia Broadcasting System, supra), then the target has no legal remedy even if the investigatory tactics used by the network are surreptitious, confrontational, unscrupulous, and ungentlemanly. In this ease, there may have been — it is too early to tell — an actionable defamation, and if so the plaintiffs have a remedy. But none of their established rights under either state law or the federal wiretapping law was infringed by the making, as opposed to the dissemination, of the broadcast segment of which they complain, with the possible and possibly abandoned exception of contract law.

Affirmed in Part, Reversed in Part, and Remanded.

Opinion by

Commissioner Stanley

Denying writ of prohibition.

This case presents a novel question.

In the recent -case of Edwards v. Lee, 230 Ky. 375, 19 S. W. (2d) 992, an appeal was dismissed which sought a review and reversal of an order of the Edmonson circuit court directing surveyors to enter upon and under the lands of Edwards and others and survey the Great Onyx Cave for the purpose of securing evidence on an issue as to whether or not a part of the cave being-exploited and shown by the appellants runs under. the ground of Lee. The nature of the litigation is stated in the opinion and the order set forth in full. It was held that the order was interlocutory and consequently one from which no appeal would lie.

Following- that decision, this original proceeding was filed in this court by appellants in that case (who were defendants below) against Hon. N. P. Sims., judge of the Edmonson circuit court, seeking a writ of prohibition to prevent him enforcing the order and punishing the petitioners for contempt for any disobedience of it. It is alleged by the petitioners that the .lower court was without jurisdiction or authority to make the order, and that their cave property and their right of possession and privacy will be wrongfully and illegally invaded, and that they will be greatly and irreparably injured and damaged without having an adequate remedy, since the damage will have been suffered before there can be an adjudication of their rights on a final appeal. It will thus be seen that there are submitted the two grounds upon which this court will prohibit inferior courts from *793proceeding, under the provisions of section 110 of the Constitution, namely: (1) Where it is a matter in which it has no jurisdiction and there is no remedy through appeal, and (2) where the court possesses jurisdiction but is exercising or about to exercise its power erroneously, and which would result in great injustice and irreparable injury to the applicant, and there is no adequate remedy by appeal or otherwise. Duffin v. Field, Judge, 208 Ky. 543, 271 S. W. 596; Potter v. Gardner, 222 Ky. 487, 1 S. W. (2d) 537; Litteral v. Woods, 223 Ky. 582, 4 S. W. (2d) 395.

1. There is no question as to the jurisdiction of the parties and the subject-matter. It is only whether the court is proceeding erroneously within its jurisdiction in entering and enforcing the order directing the survey of the subterranean premises of the petitioners: There is but little authority of particular and special application to caves and cave rights. In few places, if any, can be found similar works of nature of such grandeur and of such unique and iharvelous character as to give to caves a commercial value sufficient to cause litigation as those peculiar to Edmonson and other counties in Kentucky. The reader will find of interest the address on “The Legal Story of Mammoth Cave” by Hon. John B. Bodes, of Bowling Green, before the 1929 Session of the Kentucky State Bar Association, published in its proceedings. In Cox v. Colossal Cavern Co., 210 Ky. 612, 276 S. W. 540, the subject of cave rights was considered, and this court held there may be a severance of the estate in the property, that is, that one may own the surface and another the cave rights, the conditions being quite similar to but not exactly like those of mineral lands. But there is no such severance involved in this case, as it appears that the defendants are the owners of the land and have in it an absolute right.

Cujus est solum, ejus est usque ad coelum ad infernos (to whomsoever the soil belongs, he owns also to the sky and to the depths), is an old maxim and rule. It is that the owner of realty, unless there has been a division of the estate, is entitled to the free and unfettered control of his own-land above, upon and beneath the surface. So whatever is in a direct line between the surface of the land and the center of the earth belongs to the owner of the surface. Ordinarily that ownership cannot be interfered with or infringed by third persons. *79417 C. J. 391; 22 R. C. L. 56; Langhorne v. Turman, 141 Ky. 809, 133 S. W. 1008, 34 L. R. A. (N. S.) 211. There are, however, certain limitations on the right of enjoyment of possession of all property, such as its use to the detriment or interference with a neighbor and burdens which it must hear in common with property of a like kind. 22 R. C. L. 77.

With this doctrine of ownership in mind, we approach the question as to whether a court of equity has a transcendent power to invade that right through its agents for the purpose of ascertaining the truth of a matter before it, which fact thus disclosed will determine certainly whether or not the owner is trespassing upon his neighbor’s property. Our attention has not been called to any domestic case, nor have we found one, in which the question was determined either directly or by analogy. It seems to the court, however, that there can be little differentiation, so far as the matter now before us is concerned, between caves and mines. And as declared in 40 C. J. 947:

.“A court of equity, however, has the inherent power, independent of statute, to compel a mine owner to permit an inspection of his works at the suit of a party who can show reasonable ground for suspicion that his lands are being trespassed upon through them, and may issue an injunction to permit such inspection.”

There is some limitation upon this inherent power, such as that the person applying for such an inspection must show a bona fide claim and allege facts showing a necessity for the inspection and examination of the adverse party’s property; and, of course, the party whose property is to be inspected must have had an opportunity to be heard in relation thereto. In the instant case it appears that these conditions were met. The respondent cites several cases from other jurisdictions in which this power has been recognized and exercised. A leading case very much in point is that of Montana Co. v. St. Louis Mining & Milling Co., 152 U. S. 160, 14 S. Ct. 506, 508, 38 L E. 398. In fhat case there was involved the validity of a Missouri statute authorizing the inspection, examination, and surveying of mining property of another, when necessary to protect, ascertain, or enforce the right or interest of any person owning a mining claim. Reasoning the question as to *795whether the statute deprived the owner of his property without due process of law, it is said by Mr. Justice Brewer in the opinion:

“lOn the other hand, while not decisive of the question, the frequency with which these orders of inspection have of late years been made, and the fact that the right to make them has never 'been denied by the courts, is suggestive that there is no inherent vice in them; and if the courts of equity, by virtue of their general powers, may rightfully order such an inspection in a case pending before them, surely it is within the power of a state, by statute, to provide the manner and conditions of such an inspection in advance of the suit. To ‘establish justice’ is one of the objects of all social organizations, as well as one of the declared purposes of the federal Constitution ; and if, to determine the exact measure of the rights of parties, it is necessary that a temporary invasion of the possession of either for purposes of inspection be had, surely the lesser evil of a temporary invasion of one’s possession should yield to the higher good of establishing justice; and any measures or proceedings which, having the sanction of law, provide for such temporary invasion with the least injury and inconvenience, should not be obnoxious to the charge of not being due process of law.

“Passing from these general suggestions to some of a more special character, it must be remembered that inspection does not deprive the owner of the title to any portion of his property, nor does it deprive him permanently of the use. The property, therefore, is not taken in the sense that he no longer remains the owner, nor in the sense that the permanent use.of the property has been appropriated. In Pumpelly v. Canal Co., Green Bay Company, 13 Wall. 166 (20 L. Ed. 557), it was held that, if a party is deprived of the entire use of his property, it is a taking, within the scope of the fifth amendment, although the mere title is not disturbed; but by an inspection neither the title nor the general use is taken, and all that can be said is that there is a temporary and limited interruption of the exclusive use; and it is in that light that the question of the validity of this statute is to be determined. ’ ’

*796Further considering- the issue, and of pertinence to criticism of the order involved in the case now before us, the opinion continues:

“In conclusion, it may be observed that courts .of equity have, in the exercise of their inherent powers, been in the habit of ordering- inspections of property, as of requiring the production of books and papers; that this power on the part of such courts has never been denied, and, if it exists, a fortiori the state has power to provide a statutory proceeding to accomplish the same result; that the proceeding- provided by this statute requires notice to the defendant, of a hearing and an adjudication before the court or judge; that it permits no removal or appropriation of any property, nor any permanent dispossession of its use, but is limited to such temporary and partial occupation as is necessary for a mere inspection; that there is a necessity for such proceeding, in order that justice may be exactly administered; that this statute provides all reasonable protection to the party against whom the inspection is ordered; that the failure to require a bond, or to provide an appeal, or to have the question of title settled before a jury, is not the omission of matters essential to due process of law.”

The Supreme Court of Kansas, in Culbertson v. Iola Portland Cement Co., etc., 87 Kan. 529, 125 P. 81, 82, Ann. Cas. 1914A, 610, sustained a similar order even though there was no specific statutory authority to do so; the court saying:

“ It is contended that there was no authority for ordering or making' such an inspection, and that those acting under it would, in fact, be committing a trespass. There is no specific statutory authority for the order; but such orders have been made by courts of equity from the beginning. It may be done where there is a real necessity for inspection, or where the- facts to be determined cannot well be determined by the ordinary methods. . . .

“Inspection is frequently ordered in mining cases; but the power is exercised to assist in determining- the value of buildings and to ascertain other essential facts. ”

*797We cau see no difference in principle between the invasion of a mine on adjoining property to ascertain whether or not the minerals are being extracted from under the applicant’s property and an inspection of this respondent’s property through his cave to ascertain whether or not he is trespassing under this applicant’s property.

It appears that before making this order the court had before him surveys of the surface of both properties and the conflicting opinions of witnesses as to whether or not the Great Onyx Cave extended under the surface of the plaintiff’s land. This opinion evidence was of comparatively little value, and as the chancellor (now respondent) suggested, the controversy can be quickly and accurately settled by surveying the cave; and “if defendants are correct in their contention this survey will establish it beyond all doubt and their title to this cave will be forever quieted. If the survey shows the Great Onyx Cave extends under the lands of plaintiffs, defendants should be glad to know this fact and should be just as glad to cease trespassing upon plaintiff’s lands, if “they are in fact doing so. ’ ’ The peculiar nature of these conditions, it seems to us, makes it imperative and necessary in the adminstration of justice that the survey should have been ordered and should be made.

It appearing that the circuit court is not exceeding its jurisdiction or proceeding erroneously, the claim of irreparable injury need not be given consideration. It is only when the inferior court is acting erroneously, and great or irreparable damage will result, and there is no adequate remedy by appeal, that a writ of prohibition will issue restraining the other tribunal, as held by authorities cited above.

The writ of prohibition is therefore denied.

Whole court sitting.

Dissenting Opinion by

Judge Logan.

The majority opinion allows that to be done which will prove of incalculable injury to Edwards without benefiting Lee, who is asking that this injury be done. I must dissent from the majority opinion, confessing that I may not be able to show, by any legal precedent, that the opinion is wrong’, yet having an abiding faith in my own judgment that it is wrong.

*798It deprives Edwards of rights which ,,are valuable, and perhaps destroys the value of his property, upon the motion of one who may have no interest in that which it takes away, and who could not subject it to his dominion or make any use of it, if he should establish that which he seeks to establish in the suit wherein the survey is sought.

It sounds well in the majority opinion to tritely say that he who owns the surface of real estate, without reservation, owns from the center of the earth to the outmost sentinel of the solar system. The age-old statement, adhered to in the majority opinion as the law, in truth and fact, is not true now and never has been. I can subscribe to no doctrine which makes the owner of the surface also the owner of the atmosphere filling illimitable space. Neither can I subscribe to the doctrine that he who owns the surface is also the owner of the vacant spaces in the bowels of the earth.

The rule should be that he who owns the surface is the owner of everything that may be taken from the earth and used for his profit or happiness. Anything which he may take is thereby subjected to his dominion, and it may be well said that it belongs to him. I concede the soundness of- that rule, which is supported by the cases cited in the majority opinion; but they have no application to the question before the court in this case. They relate mainly to mining rights; that is, to substances under the surface which the owner may subject to his dominion. But no man can bring up from the depths of the earth the Stygian darkness and make it serve his purposes; neither can he subject to his dominion the bottom of the ways in the caves on which visitors tread, and for these reasons the owner of the surface has no right in such a cave which the law should, or can, protect because he has nothing of value therein, unless, perchance, he owns an entrance into it and has subjected the subterranean passages to his dominion.

A cave or cavern should belong absolutely to bim who owns its entrance, and this ownership should extend even to its utmost reaches if he has explored and connected these reaches with the entrance. When the surface owner has discovered a cave and prepared it for purposes of exhibition, no one ought to be allowed to disturb him in his dominion over that which he has conquered and subjected to his uses.

*799It is well enough to hang to our theories and ideas, but when there is an effort to apply old principles to present-day conditions, and they will not fit, then it becomes necessary for a readjustment, and principles and facts as they exist in this age must be made corn formable. For these reasons the old sophistry that the owner of the surface of land is the owner of everything from zenith to nadir must be reformed, and the reason why a reformation is necessary is because the theory was never true in the past, but no occasion arose that required the testing of it. Man had no dominion over the air until recently, and, prior to his conquering the air, no one had any occasion to question the claim of the surface owner that the air above him was subject to his dominion. Naturally the air above him should be subject to his dominion in so far as the use of the space is necessary'for his proper enjoyment of the surface, but further than that he has no right in it separate from that of the public at large. The true principle should be announced to the effect that a man who owns the surface, without reservation, owns not only the land itself, but everything upon, above, or under it which he may use for his profit or pleasure, and which he may subject to his dominion and control. But further than this his ownership cannot extend. It should not be held that he owns that which he cannot use and which is of no benefit to him, and which may be of benefit to others. '

Shall a man be allowed to stop airplanes flying above his land because he owns the surface? He cannot subject the atmosphere through which they fly to his profit or pleasure; therefore, so long as airplanes do not injure him or interfere with the use of his property, he should be helpless to prevent their flying above his dominion. Should the waves that transmit intelligible sound through the atmosphere be allowed to pass over the lands of surface-owners? If they take nothing from him and in no way interfere with his profit or pleasure, he should be powerless to prevent their passage?

If it be a trespass to enter on the premises of the landowner, ownership meaning what the majority opinion holds that it means, the aviator who flies over the land of one who owns the surface, without his consent, is guilty of trespass as defined by the common law and is subject to fine or imprisonment, or both, in the discretion of a jury.

*800If lie who owns the surface does not own and control the atmosphere above him, he does not own and control vacuity beneath the surface. He. owns everything* beneath the surface that he can subject to his profit or pleasure, but he owns nothing more. Therefore, let it be written that a man who owns land does, in truth and in fact, own everything from zenith to nadir, but only for the use that he can make of it for his profit or pleasure. He owns nothing which he cannot subject to his dominion.

In the light of these unannounced principles which ought to be the law in this modern age, let us give thought to the petitioner Edwards, his rights and his predicament, if that is done to him which the circuit judge has directed to be done. Edwards owns this cave through right of discovery, exploration, development, advertising, exhibition, and conquest. Men fought their way through the eternal darkness, into the mysterious and abysmal depths of the bowels of a groaning world to discover the theretofore unseen splendors of unknown natural scenic wonders. They were conquerors of fear, although now and then one of them, as did Floyd Collins, paid with his life, for his hardihood in adventuring into the regions where Charon with his boat had never before seen any but the spirits of the departed. They let themselves down by flimsy ropes into pits that seemed bottomless ; théy clung to scanty handholds as they skirted the brinks of precipices while the flickering flare of their flaming flambeaux disclosed no bottom to the yawning gulf beneath them; they waded through rushing torrents, not knowing what awaited them on the farther side; they climbed slippery steeps to find other levels; they wounded their bodies on stalagmites and stalactites and other curious and weird formations; they found chambers, star-studded and filled with scintillating light reflected by a phantasmagoria revealing fancied phantoms, and tapestry woven by the toiling gods in the dominion of Erebus; hunger and thirst, danger and deprivation could not stop them. Through days, weeks, months, and years — ever linking chamber with chamber, disclosing an underground land of enchantment, they continued their explorations; through the years they toiled connecting these wonders with the outside world through the entrance on the land of Edwards which he had discovered ; through the years they toiled finding safe ways for 'those who might come to view what they had found *801and placed their seal upon. They knew nothing, and cared less, of who owned the surface above; they were in another world where no law forbade their footsteps. They created an underground kingdom where Gulliver’s people may have lived or where Ayesha may have found the revolving column of fire in which to bathe meant eternal youth.

When the wonders were unfolded and the ways were made safe, then Edwards patiently, and again through the years, commenced the advertisement of his cave. First came one to see, then another, then two together, then small groups, then small crowds, then large crowds, and then the multitude. Edwards had seen his faith justified. The cave was his because he had made it what it was, and without what he had done it was nothing of value. The value is not in the black vacuum that the uninitiated call a cave. That which Edwards owns is something intangible and indefinable. It is his vision translated into a reality.

Then came the horse leach’s daughters crying: “Give me,” “give me.” Then came the “surface men” crying, “I think this cave may run under my lands.” They do not know they only “guess,” but they seek to discover the secrets of Edwards so that they may harass him and take from him that which he has made his own. They have come to a court of equity and have asked that Edwards be forced to open his doors and his ways to them so that they may go in and despoil him; that they may lay his secrets bare so that others may follow their example and dig into the wonders which Edwards has made his own. What may be the result if they stop his ways? They destroy the cave, because those who visit it are they who give it value, and none will visit it when the ways are barred so that it may not be exhibited as a whole.

It may be that the law is as stated in the majority opinion of the court, but equity, according to my judgment, should not destroy that which belongs to one man when he at whose behest the destruction is visited, although with some legal right, is not benefited thereby. Any ruling by a court which brings great and irreparable injury to. a party is erroneous.

For these reasons I dissent from the majority opinion.

Jasen, J.

The agent in charge of plainclothes detectives at Aqueduct Race Track gave the defendant a written notice to leave the premises forthwith.. The notice ordered the defendant not to enter or remain at any time ’ ’ upon the premises of the track1, and that in the event he failed to comply with the order, he would be subject to summary arrest for criminal trespass. The defendant^ upon receiving the notice, threw it on the floor and said, “ I’ll be back.”

Four months later, a detective for the Thoroughbred Racing Bureau at Aqueduct, saw the defendant enter the track. Since he knew the defendant was barred from the track, the detective *115approached the defendant to bring to mind the order of exclusion. Defendant responded with an obscenity and started running. The detective gave chase, and after apprehending the defendant, placed him under arrest for criminal trespass. After trial, the defendant was convicted and sentenced to five days in jail, from which judgment he now appeals.

Under section 140.05 of the Penal Law, as it then read, criminal trespass in the third degree is committed when one “ knowingly enters or remains unlawfully in or upon premises. ’ ’ Section 140.00 (subd. 5) defines “ Enter or remain unlawfully ” as entry by a person who "is not licensed or privileged to do so.”2

The rule is well established that the operator of a race track can “ exclude a person from attending its races s * * as long as the exclusion is not founded on race, creed, color or national origin.” (Madden v. Queens County Jockey Club, 296 N. Y. 249, 253, cert. den. 332 U. S. 761.) Moreover, the rules and regulations of the New York State Racing Commission specifically provide: “ [Undesirable persons to be ejected.] No person who is known or reputed to be a bookmaker or a vagrant within the meaning of the statutes of the State of New York, or a fugitive from justice, or whose conduct at a race track in New York or elsewhere, is or has been improper, obnoxious, unbecoming or detrimental to the best interests of racing, shall enter or remain upon the premises of any licensed association conducting a race meeting under the jurisdiction of the commission; and all such persons shall upon discovery or recognition be forthwith ejected [19 NYCRR 4.46]. ’ ’ The regulation imposes upon the licensed association the burden of carefully screening its patrons, and excluding or expelling any undesirable persons. (See Matter of Vaintraub v. New York Racing Assn., 28 A D 2d 660; Gottlieb v. Sullivan County Harness Racing Assn., 25 A D 2d 798.)

Not only did the association in this case eject the defendant from the race track, as it had a right to do, but it also served a written notice directing him not to enter the Aqueduct Race Track at any time in the future. There can be no doubt that this *116order “ not to enter ” the race track was violated by the defendant at the time he entered the track.

The defendant, however, argues that the sale of an admission ticket to him by an employee of the association on the date of his arrest authorized him to enter the race track and had the effect of countermanding the previous order of the association ‘ ‘ not to enter ’ ’.

While it is ordinarily true that the purchase of an admission ticket to a race track or a place of amusement entitles one to enter the premises, this right is not without limitation, and, of course, is subject to revocation. (Aaron v. Ward, 203 N. Y. 351, 355.)

Where, as here, a purchaser of an admission ticket is explicitly excluded as an undersirable person from the track by a lawful written order, the mere purchase of a ticket does not have the effect of nullifying the existing exclusion order since there is lacking the necessary contractual requirement of a “ meeting of minds ” at the time of the sale of the ticket. (Collister v. Hayman, 183 N. Y. 250, 253; Said v. Butt, [1920] 3 K. B. 497; see, also, Greenfeld v. Maryland Jockey Club, 190 Md. 96, 101; Powell v. Weber-Stair Co., 125 S. W. 255 [Ky.]; 1 Williston, Contracts, § 95, p. 349.) The cashier, whose primary function is to sell tickets to anyone paying the admission price, is not required, nor does he have the authority to bar prospective patrons as undesirables. The responsibility to screen patrons and to exclude or expel any undesirable person lies exclusively with the track protective bureau who had issued the original ‘ ‘ not to enter ’ ’ order.

Relevant policy considerations would also seem to weigh heavily in the result we reach. The State Racing Commission regulation (19 NYCRR 4.46) is explicit that “ No person who is known or reputed to be a bookmaker * * * shall enter * * * upon the premises of any licensed * * * race meeting ”. (Emphasis added.) To hold that the sale of a ticket revokes an existing lawful order “ not to enter ”, would prevent effective enforcement of the commission’s regulation barring certain undesirable persons from race tracks. Under such an interpretation, an undesirable person would never be subject to criminal prosecution for violating the “ not to enter ” order, but would merely risk expulsion from the race track upon discovery on the *117premises. This, in our view, would place an unreasonable burden upon the track officials in enforcing a reasonable and desirable policy of our State.

In short, defendant was guilty of criminal trespass when he entered the track premises with knowledge that he was not “ licensed or privileged to do so.”

Moreover, as noted above, criminal trespass is defined as knowingly entering or remaining unlawfully in or upon the premises of another. The word ‘ remain ’ in the phrase enter or remain ’ is designed to be applicable to cases in which a person enters with ‘ license or privilege ’ but remains on the premises after the termination of such license or privilege.” (Practice Commentary, Penal Law, § 140.00, pp. 341-342.)

The detective who arrested the defendant testified that shortly after defendant came through the turnstile, he stated to him, “ Vito, where you go; you know the boss said if you come in here, we’re locking you up in jail.” The detective, who was present when the original written notice was served upon the defendant, was, in effect, giving the defendant another notice to leave the premises. In short, he revoked the defendant’s license, which, of course, was permissible, even though defendant was already upon the premises. (Aaron v. Ward, supra; see, also, Madden v. Queens County Jockey Club, supra.) The defendant’s subsequent actions — e.g., refusal to obey the request to leave and running away inside the track—were sufficient to establish criminal trespass under the alternative provision of section 140.05. (Cf. Rager v. McCloskey, 305 N. Y. 75, 79.)

Accordingly, the judgment of conviction should be affirmed.

Chief Judge Fuld and Judges Scileppi, Bergan, Breitel and Gibson concur; Judge Burke taking no part.

Judgment affirmed.

The opinion of the Court was delivered by

PASHMAN, J.

Since January 30, 1979, appellant Resorts International Hotel, Inc. (Resorts) has excluded respondent, Kenneth Uston, from the *166blackjack tables in its casino because Uston’s strategy increases his chances of winning money. Uston concedes that his strategy of card counting can tilt the odds in his favor under the current blackjack rules promulgated by the Casino Control Commission (Commission). However, Uston contends that Resorts has no common law or statutory right to exclude him because of his strategy for playing blackjack.

We hold that the Casino Control Act, N.J.S.A. 5:12-1 to -152 gives the Commission exclusive authority to set the rules of licensed casino games, which includes the methods for playing those games. The Casino Control Act therefore precludes Resorts from excluding Uston for card counting. Because the Commission has not exercised its exclusive authority to determine whether card counters should be excluded, we do not decide whether such an exclusion would be lawful.

I

Kenneth Uston is a renowned teacher and practitioner of a complex strategy for playing blackjack known as card counting.1 Card counters keep track of the playing cards as they are dealt and adjust their betting patterns when the odds are in their favor. When used over a period of time, this method allegedly ensures a profitable encounter with the casino.

Uston first played blackjack at Resorts’ casino in November 1978. Resorts took no steps to bar Uston at that time, apparently because the Commission’s blackjack rules then in operation minimized the advantages of card counting.

On January 5, 1979, however, a new Commission rule took effect that dramatically improved the card counter’s odds. N.J. A.C. 19:47-2.5. The new rule, which remains in effect, restrict*167ed the reshuffling of the deck in ways that benefitted card counters. Resorts concedes that the Commission could promulgate blackjack rules that virtually eliminate the advantage of card counting. However, such rules would slow the game, diminishing the casino’s “take” and consequently its profits from blackjack gaming.

By letter dated January 30, 1979, attorneys for Resorts wrote to Commission Chairman Lordi, asking the Commission’s position on the legality of summarily removing card counters from its blackjack tables. That same day, Commissioner Lordi responded in writing that no statute or regulation barred Resorts from excluding professional card counters from its casino. Before the day had ended, Resorts terminated Uston’s career at its blackjack tables, on the basis that in its opinion he was a professional card counter. Resorts subsequently formulated standards for identification of card counters and adopted a general policy to exclude such players.2

The Commission upheld Resorts’ decision xo exclude Uston. Relying on Garifine v. Monmouth Park Jockey Club, 29 N.J. 47 (1959), the Commission held that Resorts enjoys a common law right to exclude anyone it chooses, as long as the exclusion does not violate state and federal civil rights laws. The Appellate Division reversed, 179 N.J.Super. 223 (1981). Although we interpret the Casino Control Act, N.J.S.A. 5:12-1 to -152 somewhat differently than did the Appellate Division, we affirm that court’s holding that the Casino Control Act precludes Resorts from excluding Uston. The Commission alone has the authority to exclude patrons based upon their strategies for playing licensed casino games. Any common law right Resorts may have had to exclude Uston for these reasons is abrogated by the act. We therefore need not decide the precise extent of Resorts’ *168common law right to exclude patrons for reasons not covered by the act. Nonetheless, we feel constrained to refute any implication arising from the Commission’s opinion that absent supervening statutes, the owners of places open to the public enjoy an absolute right to exclude patrons without good cause. We hold that the common law right to exclude is substantially limited by a competing common law right of reasonable access to public places.

II

This Court has recognized that “[t]he statutory and administrative controls over casino operations established by the [Casino Control] Act are extraordinarily pervasive and intensive.” Knight v. Margate, 86 N.J. 374, 380-81 (1981). The almost 200 separate statutory provisions “cover virtually every facet of casino gambling and its potential impact upon the public.” Id. at 381. See Bally Mfg. Corp. v. N. J. Casino Control Comm’n, 85 N.J. 325 (1981) (upholding Commission regulation barring a licensed casino from acquiring more than 50% of its slot machines from any one manufacturer). These provisions include a preemption clause, stating that the act prevails over “any other provision of law” in conflict or inconsistent with its provisions. N.J.S.A. 5:12-133(b). Moreover, the act declares as public policy of this State “that the institution of licensed casino establishments in New Jersey be strictly regulated and controlled.” N.J.S.A. 5:12-1(13).

At the heart of the Casino Control Act are its provisions for the regulation of licensed casino games. N.J.S.A. 5:12-100 provides:

... e. All gaming shall be conducted according to rules promulgated by the commission. All wagers and pay-offs of winning wagers at table games shall be made according to rules promulgated by the commission, which shall establish such minimum wagers and other limitations as may be necessary to assure the vitality of casino operations and fair odds to and maximum participation by casino patrons; ....

*169This provision on games and gaming equipment reinforces the general statutory provisions codified at N.J.S.A. 5:12-70. Those provisions provide in part:

The Commission shall, without limitation on the powers conferred in the preceding section, include within its regulations the following specific provisions in accordance with the provisions of the act;

******#♦

f. Defining and limiting the areas of operation, the rules of authorized games, odds, and devices permitted, and the method of operation of such games and devices; ....

Pursuant to these statutes, the Commission has promulgated exhaustive rules on the playing of blackjack. N.J.A.C. 19:47-2.1 to -2.13. These rules cover every conceivable aspect of the game, from determining how the cards are to be shuffled and cut, N.J.A.C. 19:47-2.5, to providing that certain cards shall not be dealt “until the dealer has first announced ‘Dealer’s Card’ which shall be stated by the dealer in a tone of voice calculated to be heard by each person at the table.” N.J.A.C. 19:47-2.6(g). It is no exaggeration to state that the Commission’s regulation of blackjack is more extensive than the entire administrative regulation of many industries.

These exhaustive statutes and regulations make clear that the Commission’s control over the rules and conduct of licensed casino games is intended to be comprehensive. The ability of casino operators to determine how the games will be played would undermine this control and subvert the important policy-of ensuring the “credibility and integrity of the regulatory process and of casino operations.” N.J.S.A. 5:12-l(b). The Commission has promulgated the blackjack rules that give Uston a comparátive advantage, and it has sole authority to change those rules. There is no indication that Uston has violated any Commission rule on the playing of blackjack. N.J. A.C. 19:47-2.1 to -2.13. Put simply, Uston’s gaming is “conducted according to rules promulgated by the Commission.” N.J.S.A. 5:12-100(e). Resorts has no right to exclude Uston on *170grounds that he successfully plays the game under existing rules.3

Ill

Resorts claimed that it could exclude Uston because it had a common law right to exclude anyone at all for any reason. While we hold that the Casino Control Act precludes Resorts from excluding Uston for the reasons stated, it is important for us to address the asserted common law right for two reasons. First, Resorts’ contentions and the Commission’s position concerning the common law right are incorrect. Second, the act has not completely divested Resorts of its common law right to exclude.

The right of an amusement place owner to exclude unwanted patrons and the patron’s competing right of reasonable access both have deep roots in the common law. See Arterburn, “The Origin and First Test of Public Callings,” 75 U.Pa.L.Rev. 411 (1927); Wyman, “The Law of Public Callings as a Solution of the Trust Problem,” 17 Harv.L.Rev. 156 (1904). In this century, however, courts have disregarded the right of reasonable access in the common law of some jurisdictions at the time the Civil War Amendments and Civil Rights Act of 1866 were passed.

*171As Justice Goldberg noted in his concurrence in Bell v. Maryland, 378 U.S. 226, 84 S.Ct. 1814, 12 L.Ed.2d 822 (1964):

Underlying the congressional discussions and at the heart of the Fourteenth Amendment’s guarantee of equal protection, was the assumption that the State by statute or by “the good old common law” was obligated to guarantee all citizens access to places of public accommodation. [378 U.S. at 296, 84 S.Ct. at 1852, 12 L.Ed.2d at 839, Goldberg, J., joined by Warren, C. J. and Douglas, J., concurring]

See, e.g., Ferguson v. Gies, 82 Mich. 358, 46 N.W. 718 (1890) (after passage of the Fourteenth Amendment, both the civil rights statutes and the common law provided grounds for a non-white plaintiff to recover damages from a restaurant owner’s refusal to serve him, because the common law as it existed before passage of the civil rights laws “gave to the white man a remedy against any unjust discrimination to the citizen in all public places”); Donnell v. State, 48 Miss. 661 (1873) (state’s common law includes a right of reasonable access to all public places).

The current majority American rule has for many years disregarded the right of reasonable access,4 granting to. proprietors of amusement places an absolute right arbitrarily to eject or exclude any person consistent with state and federal civil rights laws. See Annot., “Propriety of exclusion of persons from horseracing tracks for reasons other than color or race,” 90 A.L.R.M 1361 (1979); Turner & Kennedy, “Exclusion, Ejection and Segregation of Theater Patrons,” 32 Iowa L.Rev. 625 (1947). See also Garifine v. Monmouth Park Jockey Club, 29 N.J. at 50.

At one time, an absolute right of exclusion prevailed in this state, though more for reasons of deference to the noted English precedent of Wood v. Leadbitter, 13 M&W 838, 153 Eng.Rep. 351, (Ex.1845), than for reasons of policy. In Shubert v. Nixon *172Amusement Co., 83 N.J.L. 101 (Sup.Ct.1912), the former Supreme Court dismissed a suit for damages resulting from plaintiff’s ejection from defendants’ theater. Noting that plaintiff made no allegation of exclusion on the basis of race, color or previous condition of servitude, the Court concluded:

In view of the substantially uniform approval of, and reliance on, the decision in Wood v. Leadbitter in our state adjudications, it must fairly be considered to be adopted as part of our jurisprudence, and whatever views may be entertained as to the natural justice or injustice of ejecting a theater patron without reason after he has paid for his ticket and taken his seat, we feel constrained to follow that decision as the settled law. [83 N.J.L. at 106]

It hardly bears mention that our common law has evolved in the intervening 70 years. In fact, Leadbitter itself was disapproved three years after the Shubert decision by Hurst v. Picture Theatres Limited, (1915) 1 K.B. 1 (1914). Of far greater importance, the decisions of this Court have recognized that “the more private property is devoted to public use, the more it must accommodate the rights which inhere in individual members of the general public who use that property.” State v. Schmid, 84 N.J. 535, 562 (1980).

State v. Schmid involved the constitutional right to distribute literature on a private university campus. The Court’s approach in that case balanced individual rights against property rights. It is therefore analogous to a description of the common law right of exclusion. Balancing the university’s interest in controlling its property against plaintiff’s interest in access to that property to express his views, the Court clearly refused to protect unreasonable exclusions. Justice Handler noted that

Regulations ... devoid of reasonable standards designed to protect both the legitimate interests of the University as an institution of higher education and the individual exercise of expressional freedom cannot constitutionally be invoked to prohibit the otherwise noninjurious and reasonable exercise of [First Amendment] freedoms.” [Id. at 567]

In State v. Shack, 58 N.J. 297 (1971), the Court held that although an employer of migrant farm workers “may reasonably require” those visiting his employees to identify themselves, “the employer may not deny the worker his privacy or interfere *173with his opportunity to live with dignity and to enjoy associations customary among our citizens.” Id. at 308. The Court reversed the trespass convictions of an attorney and a social services worker who had entered the property to assist farm-workers there.

Schmid recognizes implicitly that when property owners open their premises to the general public in the pursuit of their own property interest^, they have no right to exclude people unreasonably. On the contrary, they have a duty not to act in an arbitrary or discriminatory manner toward persons who come on their premises. That duty applies not only to common carriers, Messenger v. Pennsylvania Railroad Co., 37 N.J.L. 531 (E. & A. 1874), innkeepers, see Garifine, supra, owners of gasoline service stations, Streeter v. Brogan, 113 N.J.Super. 486 (Ch.Div.1971), or to private hospitals, Doe v. Bridgeton Hospital Ass’n, Inc., 71 N.J. 478 (1976), cert. den., 433 U.S. 914, 97 S.Ct. 2987, 53 L.Ed.2d 1100 (1977), but to all property ^owners who open their premises to the public. Property owners have no legitimate interest in unreasonably excluding particular members of the public when they open their premises for public use.

No party in this appeal questions the right of property owners to exclude from their premises those whose actions “disrupt the regular and essential operations of the [premises],” State v. Schmid, 84 N.J. at 566 (quoting Princeton University Regulations on solicitation), or threaten the security of the premises and its occupants, see State v. Shack, 58 N.J. at 308. In some circumstances, proprietors have a duty to remove disorderly or otherwise dangerous persons from the premises. See Holly v. Meyers Hotel and Tavern, Inc., 9 N.J. 493, 495 (1952). These common law principles enable the casino to bar from its entire facility, for instance, the disorderly, the intoxicated, and the repetitive petty offender.

*174Whether a decision to exclude is reasonable must be determined from the facts of each case.5 Respondent Uston does not threaten the security of any casino occupant. Nor has he disrupted the functioning of any casino operations. Absent a valid contrary rule by the Commission, Uston possesses the usual right of reasonable access to Resorts International’s blackjack tables.

IV

Although the Commission alone has authority to exclude persons based upon their methods of playing licensed casino games, that authority has constitutional and statutory limits. We expressly decline to decide whether the Casino Control Act empowers the Commission to exclude card counters.

If the Commission decides to consider promulgating a rule banning card counters, it should review the statutory mandates regarding both the public policy of this State and the rules of licensed games. The Casino Control Act commands the Commission to regulate gambling with such “limitations as may be necessary to assure the vitality of casino operations and fair odds to and maximum participation by casino patrons,” N.J.S.A. 5:12-100(e) (emphasis added). The Court recognizes that the goals of casino vitality, fair odds to all players and maximum player participation may be in conflict. It is the Commission which must strike the appropriate balance.

The Commission should also consider that the Legislature has declared as public policy of this state that “[cjonfidence in casino gaming operations is eroded to the extent the State of New Jersey does not provide a regulatory framework for casino gaming that permits and promotes stability and continuity in *175casino gaming operations.” N.J.S.A. 5:12-1(14). Moreover, “[a]n integral and essential element of the regulation and control of such casino facilities by the State rests in the public confidence and trust in the credibility and integrity of the regulatory process and of casino operations.” N.J.S.A. 5:12-1(6). The exclusion of persons who can play the licensed games to their advantage may diminish public confidence in the fairness of casino gaming. To the extent persons not counting cards would be mistakenly excluded, public confidence might be further diminished. However, the right of the casinos to have the rules drawn so as to allow some reasonable profit must also be recognized in any realistic assessment. The Commission should consider the potentially broad ramifications of excluding card counters before it seeks to promulgate such a rule. Fairness and the integrity of casino gaming are the touchstones.

V

In sum, absent a valid Commission regulation excluding card counters, respondent Uston will be free to employ his card-counting strategy at Resorts’ blackjack tables. There is currently no Commission rule banning Uston, and Resorts has no authority to exclude him for card counting. However, it is not clear whether the Commission would have adopted regulations involving card counters had it known that Resorts could not exclude Uston. The Court therefore continues the temporary order banning Uston from Resorts’ blackjack tables for 90 days from the date of this opinion. After that time, respondent is free to play blackjack at Resorts’ casino absent a valid Commission rule excluding him.

For affirmance—Justices PASHMAN, CLIFFORD, SCHREIBER, HANDLER and O’HERN—5.

For reversal—None.

Chief Justice PORITZ

delivered the opinion of the Court.

This case raises a question about the right of the public to use a 480-foot wide stretch of upland sand beach in Lower Township, Cape May County, owned by respondent Atlantis Beach Club, Inc., and operated as a private club. We hold today that, in the circumstances presented here, and on application of the factors set forth in Matthews v. Bay Head Improvement Ass’n, 95 N.J. 306, 326, 471 A.2d 355, cert. denied, 469 U.S. 821, 105 S.Ct. 93, 83 L.Ed.2d 39 (1984), the public trust doctrine requires the Atlantis property to be open to the general public at a reasonable fee for services provided by the owner and approved by the Department of Environmental Protection.

I.

Atlantis Beach Club, Inc. (Atlantis or Beach Club) is the successor in title to a Riparian Grant, dated January 17, 1907, from the State of New Jersey to the Cape May Real Estate Company. The grant encompassed a large area not relevant to this litigation except for certain submerged land that, in 1907, was located within the bed of Turtle Gut Inlet, a body of water that connected to the Atlantic Ocean. Today, the land is described on the Lower Township Municipal Tax Map as Block 730.02, Lot 1.02. No longer submerged, the lot extends to the mean high water line from a bulkhead running north/south along the western boundary of the property. That western boundary lies to the east of an *43unpaved section of Raleigh Avenue (which runs east/west), whereas the mean high water line serves as the boundary for Lot 1.03, which is entirely submerged beneath the ocean at high tide; Lot 1.02, however, consists of dry sand beach and protected dunes. The distance from the bulkhead (the western boundary of Lot 1.02) to the mean high water line is about 342 feet. Persons using the beach for recreational purposes cross over the bulkhead by walking on a boardwalk pathway that traverses the dunes and curves southward to the beach. The dry sand beach area lies beyond the dunes and extends to the mean high water line.

A pathway runs east/west along the unpaved section of Raleigh Avenue to the approximate midpoint of the bulkhead and then, as described, across the bulkhead and through the dunes. The pathway was approved by the New Jersey Department of Environmental Protection (DEP or Department) in a 1986 permit issued pursuant to the Coastal Area Facility Review Act (CAF-RA), N.J.S.A 13:19-1 to -21. The CAFRA permit related to the construction of the La Vida del Mar Condominiums (La Vida), a four-story, twenty-four-unit condominium structure along Raleigh Avenue, and required as a condition of condominium construction public access “down the center of Raleigh Avenue, ... and [by means of] a timber walkway over the bulkhead to the beach.” The permit also required Department-approved signs marking public access to be “conspicuously located at the end of [the] Raleigh Avenue pavement” and maintained by the condominium homeowners’ association for the life of the condominium project.1

*44As noted, the La Vida building stands immediately to the west of the bulkhead along the western boundary of the Atlantis property. Another four-story multiple unit condominium complex called the La Quinta del Mar sits to the south of La Vida and the path that runs from the end of the pavement on Raleigh Avenue and over the bulkhead. To the west of La Quinta del Mar are the Villa House and La Quinta Towers, both of which contain residential units. Seapointe Village (Seapointe) is located to the north of La Vida and consists of several structures, including a six-story, one-hundred-room hotel, and more than five hundred residential units. Seapointe occupies 63.4 acres, including the beach property to the north of the Atlantis beach.

When the Seapointe property was developed, the DEP, as a condition of its 1987 CAPRA permit, required the beach in front of Seapointe to be open to the public. Under the terms of the permit, Seapointe is allowed to sell daily, weekly, and seasonal beach passes at rates approved by the DEP, although residents can access the area beyond the mean high water line free-of-charge. Public access through Seapointe’s beach along the water’s edge is also free-of-charge, and beach usage fees, regulations, and operations are subject to continued periodic review and approval by the DEP. Seapointe provides lifeguards on its beach, as well as public restrooms, outdoor showers, and parking facilities. In August 2002 when this litigation began, the rates for use of the Seapointe beach were, per person, $2.50 a day, $10 a week, and $40 a season; however, Seapointe had submitted an application for a fee increase that was pending at that time.

The United States Coast Guard owns the property to the south of the Atlantis beach. That property is closed to the public from *45April 1 through August 15 to protect the piping plover, an endangered species, during breeding season. Although the Coast Guard beach is unavailable for most of the summer season, the property is open to the public the rest of the year.

Atlantis is located in the Diamond Beach neighborhood, a residential area of approximately three blocks by nine blocks that contains the only beach in Lower Township facing the Atlantic Ocean. In addition to the beach access point on the Atlantis property at the end of Raleigh Avenue, there are two other access points in Diamond Beach north of Atlantis: one at the eastern end of Dune Drive and the other at the eastern end of Memphis Avenue. Access is blocked by condominium buildings located at the terminus of the other streets in the area. According to certifications filed by residents of La Quinta Towers in support of plaintiff Raleigh Avenue Beach Association (Association), the closest free entry to the beach is Dune Drive, a nine-block walk from Raleigh Avenue and a distance of approximately one-half mile. The beach access problem in Lower Township is further compounded by the limited number of parking spaces available in the Diamond Beach neighborhood.

Until 1996, the beach on the Atlantis property was open to the public free-of-charge. In the summer of 1996, however, Atlantis established a private beach club known at the time as Club Atlantis Enterprises. The club limited public access to its beach by charging a fee of $300 for six seasonal beach tags. As of July 2003, a sign posted on the gate2 at the entrance to the Atlantis beach read: “FREE PUBLIC ACCESS ENDS HERE/MEMBERSHIP AVAILABLE AT GATE.” Atlantis’s 2003 Rules and Regulations, also posted, provided the following warning:

ANYONE ATTEMPTING TO USE, ENTER UPON OR CROSS OVER CLUB PROPERTY FOR ANY REASON WITHOUT CLUB PERMISSION OR WHO IS NOT IN POSSESSION OF A VALID TAG AND AUTHORIZED TO USE SUCH TAG WILL BE SUBJECT TO PROSECUTION, CIVIL AND OR CRIMI*46NAL[,] TO THE FULLEST EXTENT PERMITTED BY LAW[,] INCLUDING ALL COSTS AND LEGAL FEES INCURRED BY THE CLUB.

Prior to the commencement of this litigation, the membership fee for new members and members who had joined the beach club in 2002 was set at $700 for the 2003 summer season. Members were entitled to eight beach tags per household.3 Atlantis also sold “Access Easements” at $10,000 each, paid in cash.4 Easement holders were required to pay an annual membership fee determined by dividing the actual costs associated with operating the beach club by the total number of members (both easement holders and yearly members) to arrive at the holder’s proportionate share. According to a March 14, 2003 letter to members, the payment of membership fees or the purchase of an easement entitled them “to use and enjoy the [club] facilities,” which included uniformed private security personnel on club grounds, as well as lifeguards on duty from June 21 through September 1, 2003, seven days a week, between the hours of 10:00 a.m. and 5:00 p.m.

II.

On June 22, 2002, Tony Labrosciano, a member of the Association, was issued a summons for trespassing when he attempted to leave the wet sand area and walk across the Atlantis property to the eastern terminus of Raleigh Avenue in order to take the most direct route back to his home. On July 26, 2002, Atlantis filed an Order to Show Cause and Verified Complaint against Labrosciano, other unnamed persons, Lower Township, and the State of New Jersey, seeking, among other things, to enjoin Labrosciano and members of his class from “trespassing, entering onto and aceess-*47ing” the Atlantis property, and declaring that Atlantis is not required to provide the public with access to or use of any portion of its property or the adjacent ocean.

The Association, which consists of individuals who reside on Raleigh Avenue in the Diamond Beach neighborhood, filed a complaint on August 14, 2002 against Atlantis, the Lower Township Police Department, Seapointe Village Association, and the State of New Jersey.5 The Association claimed that Atlantis was in violation of the public trust doctrine and sought free public access through the Atlantis property to the beach, and to a sufficient amount of dry sand above the mean high water line to permit the public to enjoy the beach and beach-related activities. That Association action was subsequently consolidated with the Atlantis action.6

On June 2, 2003, the DEP issued an Administrative Order and Notice of Civil Administrative Penalty Assessment (AO/NOCAPA) to Atlantis for conducting CAFRA-regulated activities on its property without obtaining required permits.7 The DEP had determined, on completion of a May 23, 2003 compliance review, that Atlantis had engaged in prohibited conduct, including excavation of sand dunes and grading of the Atlantis beach, in violation of the CAFRA Coastal Zone Management Rules (N.J.AC. 7:7E-3A.l *48to -3A.5) and a July 2, 1999 Administrative Consent Order, and without the requisite CAFRA General Permit for Beach and Dune Maintenance. The AO/NOCAPA ordered Atlantis to restore the dunes that had been destroyed and to install sand fencing in a zigzag pattern throughout the restoration area. Two days later, on June 5, 2003, the DEP notified Atlantis that it had not obtained CAFRA permits to erect certain structures on its beach and that the necessary permit applications were to be submitted to the DEP within thirty days.

On or about July 10, 2003, the DEP moved before the trial court for partial summary judgment and dismissal of all claims against it. The Department sought a ruling on the question whether the beach along the Atlantic Ocean in the Diamond Beach area is subject to the public trust doctrine such that an individual can walk along the ocean shore on the Atlantis property without fear of prosecution for trespassing or for a disorderly persons offense. On the question of access, the Department asked the court to defer to the pending administrative proceedings.

On September 19, 2003, the trial court issued a ruling from the bench, followed by both a Memorandum of Decision, dated September 22, 2003, and an Order of Final Judgment, dated November 3, 2003. The court considered and disposed of issues relating to both horizontal and vertical access to the Atlantis beach under the public trust doctrine. More specifically, the court held that the public was entitled to a right of horizontal access to the ocean by means of “a three-foot wide strip of dry sand, immediately landward of the mean high water line and extending from the northern to the southern boundaries of [the Atlantis] [property, which may be utilized by the public, at no charge, for the purpose of entering into and exiting from” the area located below the mean high water line. The trial court also held that the public was entitled to limited vertical access to the ocean, consisting of a path from the bulkhead through the dunes on the property. Although acknowledging the DEP’s authority to regulate the location, structure, and protection of dunes, and therefore, the placement of the *49path, the court focused on the limited nature of the public right to vertical access:

Insofar as is practicable, the path shall exit [the Atlantis] [property within the portion of the [property upon which the dunes are located. In no event shall the path cross the remaining portion of the [property other than along the northern boundary thereof or provide, without Atlantis’ consent, public access to any other portion of the [property, other than ... [h]orizontal [a]ccess, landward of the mean high water line.

In the court’s view, “the Public Trust Doctrine does not apply to permit the Department to regulate the use of the Beach Area.”

Finally, Atlantis was prohibited from charging a fee or otherwise restricting the right of the public to horizontal or vertical ocean access. The court determined, however, that the provision of such services as lifeguards, equipment, or other facilities by Atlantis would entitle the Beach Club, on application to and with the DEP’s approval, to charge a commercially reasonable fee to members of the public who use the horizontal access to swim in the ocean. The court denied without prejudice the Atlantis application to amend its pleadings so as to assert a regulatory takings claim.

The State and the Association appealed.8 While the appeal was pending, by a March 9, 2004 letter Atlantis notified its members about the 2004 beach fee schedule. Returning members from 2003 were required, as in the prior year, to pay $700 for eight beach tags, whereas the easement price was increased from $10,000 to $15,000. On April 20, 2004, the State moved before the Appellate Division for a stay of the 2004 beach fees. The Appellate Division granted the State’s motion on May 4, ordering that no beach fees could be charged pending oral argument in the matter and until further order of that court. The court also directed Atlantis to return to its members any payments made after January 1, 2004.

*50On motion by Atlantis for clarification, and after oral argument, the Appellate Division issued an interim order on May 20, 2004. Pending opinion, the court granted “[t]he public ... vertical access to the beach ... upon the boardwalk pathway which currently exists through the dunes on the subject property as an extension of Raleigh Avenue.” The panel also found that “[t]he public [had] the right to use all of the dry sand and complete horizontal access to the subject property, including the ocean.” Atlantis was allowed to charge a reasonable and comparable fee for the use of its beach pursuant to a DEP-approved fee schedule covering daily, weekly, monthly, and seasonal tags, but only if the beach club provided lifeguard services comparable to municipally-provided services, beach clean-up with regular trash removal, and shower facilities. Atlantis could choose not to issue beach tags or to charge fees for service, in which ease public access to the beach and ocean would remain open and free.

On June 3, 2004, the Appellate Division issued its opinion. Raleigh Ave. Beach Ass’n v. Atlantis Beach Club, Inc., 370 N.J.Super. 171, 851 A.2d 19 (2004). The court reaffirmed the central premise of its Order that “Atlantis cannot limit vertical or horizontal public access to its dry sand beach area nor interfere with the public’s right to free use of the dry sand for intermittent recreational purposes connected with the ocean and wet sand.” Id. at 176, 851 A.2d 19. As permitted under the Order, Atlantis could charge a fee to members of the public who remain on and use its beach for an extended period of time, as long as Atlantis cleans the beach, picks up trash regularly, and provides shower facilities. Ibid. The panel ruled further that Atlantis was required to provide customary lifeguard services for members of the public who use the ocean areas up to the mean high water line, regardless of whether those individuals remain on the Atlantis beach area or merely pass through. Ibid. Reasonable and comparable fees, approved by the DEP, would be allowed in an amount sufficient to cover operating costs, including an amount related to management services. Ibid. The court remanded to the DEP the issue of the appropriate fee to be charged for beach use, ordering *51the Department to approve a fee schedule by June 10, 2004, so as not to unduly interfere with the beach season beginning June 15, 2004. Id. at 194, 851 A.2d 19.

On remand, Atlantis submitted an Application for General CAF-RA Permit and, on June 10, 2004, the DEP issued an interim beach badge schedule setting fees at $3 per day, $15 per week, $40 per month, and $55 per season, effective immediately. Shortly thereafter, Atlantis filed a Notice of Petition for Certification and moved before the Appellate Division for a stay pending this Court’s review of its Petition. The Appellate Division denied the motion by Order dated July 19, 2004, wherein the court further directed that all non-member beach badges must be transferable, that no photo identification requirement may be associated with non-member badges, and that no liability waiver may be required of anyone seeking a badge. On August 2, 2004, Atlantis moved before this Court for a stay of the Appellate Division’s opinion and order pending certification. The Court denied the Atlantis motion on August 13, 2004, and granted certification on September 29, 2004. 181 N.J. 548, 859 A.2d 693 (2004).

At oral argument before us, counsel for Atlantis conceded vertical access to the ocean by the public from the boardwalk pathway at the terminus of Raleigh Avenue, over the bulkhead and the dunes and across the dry sand area to the ocean. Atlantis maintained its position that persons who are not members of the Beach Club may only walk along the three feet of dry sand that lie landward of the mean high water line, as so held by the trial court, and may not use the dry sand beach beyond that horizontal three-foot strip of sand.

III.

The law we are asked to interpret in this case—the public trust doctrine—derives from the English common law principle that all of the land covered by tidal waters belongs to the sovereign held in trust for the people to use. Borough of Neptune City v.

*52Borough of Avon-by-the-Sea, 61 N.J. 296, 303, 294 A.2d 47 (1972). That common law principle, in turn, has roots

in Roman jurisprudence, which held that "[b]y the law of nature!,] • • • the air, running water, the sea, and consequently the shores of the sea,” were “common to mankind.” ... No one was forbidden access to the sea, and everyone could use the seashore “to dry his nets there, and haul them from the sea____" The seashore was not private property, but “subject to the same law as the sea itself, and the sand or ground beneath it.”

[Matthews, supra, 95 N.J. at 316-17, 471 A.2d 355 (citations and footnote omitted).]

In Arnold v. Mundy, 6 N.J.L. 1, 53 (E. & A. 1821), the first case to affirm and reformulate the public trust doctrine in New Jersey, the Court explained that upon the Colonies’ victory in the Revolutionary War, the English sovereign’s rights to the tidal waters “became vested in the people of New Jersey as the sovereign of the country, and are now in their hands.” Arnold, supra, addressed the plaintiffs claim to an oyster bed in the Raritan River adjacent to his farm in Perth Amboy. Id. at 45. Chief Justice Kirkpatrick found that the land on which water ebbs and flows, including the land between the high and low water, belongs not to the owners of the lands adjacent to the water, but to the State, “to be held, protected, and regulated for the common use and benefit.” Id. at 49, 71.

Early understanding of the scope of the public trust doctrine focused on the preservation of the “natural water resources” of New Jersey “for navigation and commerce ... and fishing, an important source of food.” Neptune City, supra, 61 N.J. at 304, 294 A.2d 47. In Neptune City, supra, the Court extended public rights in tidal lands “to recreational uses, including bathing, swimming and other shore activities.” Id. at 309, 294 A.2d 47. We invalidated a municipal ordinance that required non-residents of Avon-by-the-Sea to pay a higher fee than the residents of Avon were required to pay to access and use the town’s beaches. Id. at 310, 294 A.2d 47. The Court held:

[A]t least where the upland sand area is owned by a municipality ... and dedicated to public beach purposes, a modem court must take the view that 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.

*53[Id. at 308-09, 294 A.2d 47.]

Later, in Matthews, supra, we considered “the extent of the public’s interest in privately-owned dry sand beaches,” which, we noted, “may [include both] a right to cross [such] privately owned ... beaches in order to gain access to the foreshore ... [and a] right to sunbathe and generally enjoy recreational activities” on the dry sands. 95 N.J. at 322-23, 471 A.2d 355. We observed that New Jersey’s beaches constitute a “unique” and “irreplaceable” resource, subject to increased pressure from population growth throughout the region and improved transportation to the shore. Id. at 323, 471 A.2d 355. Concerned about the great demand and the limited number of beaches open to the public, we repeated:

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.

[Id. at 323-24, 471 A.2d 355.]

Matthews clearly articulates the concept already implicit in our case law that reasonable access to the sea is integral to the public trust doctrine. Indeed, as Matthews, supra, points out, without access the doctrine has no meaning. Id. at 323, 471 A.2d 355.

That leaves the question raised in this case: whether use of the dry sand ancillary to use of the ocean for recreation purposes is also implicit in the rights that belong to the public under the doctrine. Matthews, supra, states unequivocally that a “bather’s right in the upland sands is not limited to passage ... [and that] [Reasonable enjoyment of the foreshore and the sea cannot be realized unless some enjoyment of the dry sand area is also allowed.” Id. at 325, 471 A.2d 355. Because the activity of swimming “must be accompanied by intermittent periods of rest and relaxation beyond the water’s edge,” the lack of an area available to the public for that purpose “would seriously curtail and in many situations eliminate the right to the recreational use *54of the ocean.” Ibid. Although the Matthews Court did not compare that use of the dry sand to use associated with ancient fishing rights, it did point out that under Roman law, “everyone could use the seashore ‘to dry his nets there, and haul them from the sea ____Id. at 317, 471 A.2d 355 (quoting Justinian Institutes 2.1.1) (T. Sandars trans. 1st Am. ed. 1876) (footnote omitted). It follows, then, that use of the dry sand has long been a correlate to use of the ocean and is a component part of the rights associated with the public trust doctrine.

The factual context in which Matthews was decided was critical to the Court’s holding. Neptune City, supra, had held that the general public must be allowed to use a municipally-owned dry sand beach on equal terms with residents of the municipality. 61 N.J. at 310, 294 A.2d 47; see Van Ness v. Borough of Deal, 78 N.J. 174, 179-80, 393 A.2d 571 (1978) (holding that a municipality could not limit public use of municipal beach to fifty-foot strip along high water line when Deal residents and property owners were permitted to use entire beach area). Matthews, supra, involved a private non-profit entity, the Bay Head Improvement Association (Improvement Association), that owned/Leased and operated certain upland sand areas in the Borough of Bay Head for the recreational use of Bay Head residents only. 95 N.J. at 314-15, 471 A.2d 355. The Improvement Association was closely connected with the municipality, which provided at various points in time, office space, liability insurance, and funding, among other things. Id. at 330, 471 A.2d 355. That symbiotic relationship, as well as the public nature of the activities conducted by the Improvement Association, led the Court to conclude that the Improvement Association was in reality a “quasi-public bod/’ bound by the Neptune City holding. Id. at 328, 329,471 A.2d 355.

Although decided on narrow grounds, Matthews established the framework for application of the public trust doctrine to privately-owned upland sand beaches. The Matthews approach begins with the general principle that public use of the upland sands is “subject to an accommodation of the interests of the owner,” and *55proceeds by setting forth criteria for a case-by-case consideration in respect of the appropriate level of accommodation. Id. at 325-26, 471 A.2d 355. The Court’s formulation bears repeating here:

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.”____

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 relation to the foreshore, extent and availability of publicly-owned upland sand area, nature and extent of the public demand, and usage of the upland sand land by the owner are all factors to be weighed and considered in fixing the contours of the usage of the upper sand.

Today, recognizing the increasing demand for our State’s beaches and the dynamic nature of the public trust doctrine, we find that the public must be given both access to and use of privately-owned dry sand areas as reasonably necessary. While the public’s rights in private beaches are not coextensive with the rights enjoyed in municipal beaches, private landowners may not in all instances prevent the public from exercising its rights under the public trust doctrine. The public must be afforded reasonable access to the foreshore as well as a suitable area for recreation on the dry sand.

[7d at 326, 471 A.2d 355 (citations omitted).]

IV.

We turn now to an application of the Matthews factors to the circumstances of this case in order to determine “what privately-owned upland sand area will be available and required to satisfy the public’s rights under the public trust doctrine.” Ibid.

“Location of the dry sand area in relation to the foreshore”:

The dry sand beach at the center of this controversy extends horizontally 480 feet from the Coast Guard property south of Atlantis to the Seapointe property north of Atlantis, and vertically, from three feet landward of the mean high water line about 339 feet to the dunes adjacent to the bulkhead and the Raleigh Avenue extension. It is easily reached by pedestrians using the path bisecting the Raleigh Avenue extension from the end of the paved roadway to the bulkhead.

*56 “[EJxtent and availability of publicly-owned upland sand area”:

There is no publicly-owned beach area in Lower Township, although it was represented to us at oral argument that there are public beaches in the ‘Wildwoods” north of Lower Township. The Borough of Wildwood Crest, immediately north of Lower Township, owns dry sand beach that is used by the public. Seapointe, a private entity, as required by its 1987 CAFRA permit, has made its upland sands available to the public for a “reasonable” fee, approved by the DEP at a level comparable to fees charged by nearby town beaches (in 1987, Cape May City, Avalon, and Stone Harbor beaches). The Coast Guard beach to the south of Atlantis is closed to the public for the better part of the summer season (April 1 through August 15) to protect the endangered piping plover.

“[NJature and extent of the public demand”:

The Diamond Beach section of Lower Township is not large (three blocks by nine blocks), and parking is limited but available along the area streets. Local residents whose homes are within easy walking distance of Atlantis are members of the plaintiff Association, through which they have expressed their individual concerns about access and use. That there is enormous public interest in the New Jersey shore is well-known; tourism associated with New Jersey’s beaches is a $16 billion annual industry.

“[UJsage of the upland sand land by the owner”:

The more or less rectangular area of dry sand that constitutes the Atlantis beach has been closed to non-members of Atlantis from the summer of 1996 to May 4, 2004. On May 4, the Appellate Division required open access and use by the public to the entirety of the beach area and permitted reasonable and comparable fees to be approved by the DEP on application by Atlantis. As for the period prior to 1996, the general public used the beach without limitation or fee during the ten years between 1986 and 1996 and, it appears, enjoyed the same open access and use prior to 1986 (although the record is sparse on the issue of prior use). The La Vida condominiums, situated directly to the *57west of Atlantis, were constructed in 1986. By the La Vida CAFRA permit, the developer/owner accepted as binding a condition on development making the homeowner’s association responsible for public access “to the beach,” with adequate signage, for the life of the condominium project. The permit describes the relationship between the La Vida site and the beach as follows:

The site is adjacent, and provides access points for residents and the public to the ocean beach, which is about 220’ in width at the site.[9] The proposed development will have minimal impact on the beach, but as required under the policy on Dunes (7:7E-3.21), the remaining dunes must be reconstructed, replanted, and maintained. Provided an acceptable plan is submitted and implemented for dune enhancement and management, and provided walkovers to the beach are provided as discussed under the policies on Dunes (3.21) and Public Access to the Waterfront (8.11), and as required by conditions of this permit, this policy is met. [Emphasis added.]

Although the permit language is not without ambiguity, and the record is not clear in respect of the relationship between the developer/owner of La Vida and the owner of Atlantis, see supra at 43 n. 1, 879 A.2d at 114 n. 1, it may be inferred from this section of the permit that open access and use was ceded to the public by La Vida. Most telling, the permit describes access to a 220-foot strip of upland sand beach, not the foreshore. It is difficult to imagine that the DEP (or La Vida) anticipated anything other than public use of that area. That argument has not been made by any party, however; we, therefore, will not here consider the permit dispositive on the issue of public use. Suffice it to say that *58the Atlantis beach was used by the public for many years and that public access and, arguably, public use of 220 feet of ocean beach had been required as a condition of a CAFRA development permit.10

From the summer of 1996 to May 4, 2004, Atlantis charged unregulated membership fees in varying amounts for access to and use of its beach. During the 2003 season, new members (and members who joined in 2002) paid $700 and received eight beach tags per household. In violation of the La Vida CAFRA permit, in the summer of 2003 Atlantis removed the public beach access sign at the western end of the Raleigh Avenue pathway extension and replaced it with a sign that read “FREE ACCESS TO GATE ONLY.” The gate was located at the end of the pathway at the bulkhead. Later that summer, contradictory signs at the gate read “PUBLIC BEACH ACCESS” and “PUBLIC ACCESS ENDS HERE/MEMBERSHIP AVAILABLE AT GATE.” The La Vida permit, however, required

a landscaped public access pathway from the project site entrance down the center of Raleigh Avenue, and, according to the EIS and original site plan, a timber walkway over the bulkhead to the beach.

The permit stated:

Although this accessway is minimal, it is considered adequate due to the small scale of this project. Public parking has not been lost at this site ... and on-street parking is available to the public on surrounding roads. The proposed pathway and walkover will provide reasonable access to the beach, provided public access signs (available from the [DEP]) are conspicuously located at the end of Raleigh Avenue pavement. Therefore, as a condition of this permit, within 30 days of issuance, submit for review and approval a site plan specifically showing the proposed location and detail of the public walkover structure, and the proposed location of public access signage (a 1’ x 2’ metal sign available from the [DEP] on a *59standard metal signpost supplied by applicant), and construct the accessway improvements in accordance with the approved plan prior to occupancy of the structure. Maintenance and/or reconstruction of this walkway shall be the responsibility of the Homeowner’s Association for the life of this project.

On the one hand, guards hired by Atlantis have asked nonmembers to leave the beach, and violators have been prosecuted by Atlantis in municipal court. On the other hand, the DEP has issued notices of violation both to La Vida and to Atlantis because of the signage infractions, because a section of the dunes was destroyed by the Beach Club, and because structures were erected on the beach without CAFRA approval.

The private beach property held by Atlantis is an area of undeveloped upland sand and dunes at the end of a street in a town that does not have public beaches. The owner, after years of public access and use, and despite a condition in the La Vida permit providing for access and, arguably use, decided in 1996 to engage in a commercial enterprise—a private beach club—that kept the public from the beach. Atlantis recognizes that as a “place of public accommodation,” N.J.S.A. 10:5-51, under the Law Against Discrimination, N.J.S.A 10:5-1 to -42, it must provide membership opportunities to the general public without regard to race, creed, or color, Clover Hill Swimming Club v. Goldsboro, 47 N.J. 25, 83-35, 219 A.2d 161 (1966). See N.J.A.C. 7:7E-8:ll(b)(5) (requiring “establishments ... [that] control access to tidal waters [to] comply with the Law Against Discrimination”). The Beach Club nonetheless asserts that it will lose one of the “sticks” in its bundle of property rights if it cannot charge whatever the market will bear, and, in setting fees for membership, decide who can come onto its property and use its beach and other services (lifeguards, trash removal, organized activities, etc.). But exclusivity of use, in the context here, has long been subject to the strictures of the public trust doctrine.

In sum, based on the circumstances in this case and on application of the Matthews factors, we hold that the Atlantis upland sands must be available for use by the general public under the public trust doctrine. In so holding we highlight the longstanding *60public access to and use of the beach, the La Vida CAFRA permit condition, the documented public demand, the lack of publicly-owned beaches in Lower Township, and the type of use by the current owner as a business enterprise. We also adopt the construct put forward by the Appellate Division in connection with an appropriate fee structure for use of the beach by the public. That issue, however, requires further discussion.

V.

As noted by the Appellate Division, Atlantis is willing to “extend[], without fee, its lifeguard services to members of the public who use the ocean but do not remain on its property.” Raleigh Ave., supra, 370 N.J.Super. at 189, 851 A.2d 19. Although Atlantis claims that the DEP lacks jurisdiction to approve any fees charged by the Beach Club for its other services, the panel rejected that claim:

CAFRA was enacted by the Legislature in 1973. In re Egg Harbor Assocs., 94 N.J. 358, 362 [464 A.2d 1115] (1983). Although CAFRA is primarily an environmental protection statute, “the powers delegated to DEP extend well beyond protection of the natural environment.” Id. at 364 [464 A.2d 1115]. Specifically, CAFRA delegates powers to the DEP and requires it to adopt rules and regulations governing land use within the coastal zone “for the general welfare.” Ibid. The [Legislature amended CAFRA in 1993, significantly expanding its jurisdiction. In re Protest of Coastal Permit Program Rules, 354 N.J.Super. 293, 310 [807 A.2d 198] (App.Div.2002).

[Id. at 190, 851 A.2d 19.]

More specifically, CAFRA regulates activities in the coastal zone by requiring developers/property owners to obtain a permit from the DEP before undertaking “the construction, relocation, or enlargement of any building or structure and all site preparation therefore, the grading, excavation or filling on beaches or dunes, ... including] residential development, commercial development, industrial development, and public development.” N.J.S.A. 13:19-3; see Protest of Coastal Permit Program Rules, supra, 354 N.J.Super. at 310, 807 A.2d 198 (citing N.J.S.A 13:19-5, 19-5.2, 19-5.3).

*61The DEP exercises its statutory authority under CAFRA through the Coastal Permit Program Rules, N.J.A.C. 7:7-l.l to - 10.6, and the Coastal Zone Management Rules, N.J.A.C. 7:7E-1.1 to -8.22; see Protest of Coastal Permit Program Rules, supra, 354 N.J.Super. at 312, 807 A.2d 198. The Coastal Permit Program Rules directly address permitting requirements for “[a]ny development located on a beach or dune.” N.J.AC. 7:7-2.1(a)(1). Such development, which consists of dune walk-over and boardwalk structures, is regulated by N.J.A.C. 7:7E-3A.l to -3A.5; see N.J.AC. 7:7E-3A.5 (providing standards for construction of boardwalks) and N.J.A.C. 7:7E-3A.4 (providing standards for dune creation and maintenance). Pertinent to this case, “[d]une creation and maintenance includes the ... maintenance and clearing of beach access pathways less than eight feet in width, and the construction or repair of approved dune walkover structures.” N.J.AC. 7:7E-3A.4(a).

We agree with the Appellate Division that the boardwalk pathway over the dunes to the Atlantis beach qualifies as a development, thereby triggering the DEP’s CAFRA jurisdiction over related use of the beach and ocean. See Raleigh Ave., supra, 370 N.J.Super. at 191, 851 A.2d 19. We find jurisdiction also in the DEP’s general “power to promote the health, safety, and welfare of the public.” In re Egg Harbor Assocs., supra, 94 N.J. at 372, 464 A.2d 1115. We hold that the broad scope of the DEP’s authority includes jurisdiction to review fees proposed by Atlantis for use of its beach. We expect that the DEP will use N.J.AC. 7:7E-8.11(b)4, which limits fees at publicly-owned beaches to an amount “required to operate and maintain the facility” as a guide, and that fees will not be approved if they operate to “[ljimit access by placing an unreasonable economic burden on the public.” Raleigh Ave., supra, 370 N.J.Super. at 193, 851 A.2d 19. Finally, we approve the approach taken by the Appellate Division wherein the panel recognized that Atlantis, as a private entity, should be allowed to include expenses actually incurred for reasonable management services (in addition to reimbursement for other costs) in *62the fee calculation. Ibid. We add only that DEP-approved fees are unrelated to the independent and inherent right of Atlantis to provide cabanas for rent,11 at a rate determined by the Beach Club and after obtaining a permit to construct or place such buildings on its property, or to engage in other similar business enterprises for profit, e.g., beach chair rentals, food concessions, etc.

VI.

For the reasons expressed in this opinion, the decision of the Appellate Division is affirmed.

Justice WALLACE, JR.,

dissenting.

I would reverse and reinstate the judgment of the trial court granting access to the ocean and an easement across the private sand area owned by the Atlantic Beach Club to access the beach at Seapointe. However, because a three-foot-wide strip would not easily allow for an adult and child to walk within that limited area, I would expand the horizontal access across defendant’s property to a ten-foot-wide strip above the high water mark.

I.

As the majority opinion makes clear, this Court has not previously defined the rights that the public has to privately-owned beaches. Because “it has been long established that the individual States have the authority to define the limits of the lands held in public trust and to recognize private rights in such lands as they see fit[,]” Phillips Petroleum Co. v. Mississippi, 484 U.S. 469, 475, 108 S.Ct. 791, 794-95, 98 L.Ed.2d 877 (1988), the lands subject to the public trust doctrine are to be determined by each State.

*63New Jersey was the first state to recognize and apply the public trust doctrine:

The public trust doctrine is the legal principle that the submerged lands and waters below mean highwater mark are owned by the state government in trust for public uses such as transportation and fishing. In 1821 the New Jersey Supreme Court was the first in the United States to verify its application in the New World, in Arnold v. Mundy [, 6 N.J.L. 1 (1821)]; in 1842 the U.S. Supreme Court reaffirmed that court’s ruling in Martin v. Waddell[’s Lessee, 41 U.S. 367, 16 Pet. 367, 10 L.Ed. 997 (1842) ]. Both came about because of conflicts over rights to oyster grounds in the Raritan River and Bay____The outcome was recognition of the state’s ownership as trustee for the people of the state. Subsequently, the doctrine has played important roles in waterfront development, uses and management of ... wetlands, and public access to riverfronts and beaches.

[Encyclopedia of New Jersey 665-66 (Maxine N. Lurie & Marc Mappen eds., 2004).]

We have interpreted the public trust doctrine to require broad public access to those lands that are held in public trust. Borough of Neptune City v. Borough of Avon-by-the-Sea, 61 N.J. 296, 308-09, 294 A.2d 47 (1972) (noting that public trust doctrine dictates that when municipality owns upland sand, beach and ocean must be available on equal terms to entire public); Van Ness v. Borough of Deal, 78 N.J. 174, 179-80, 393 A.2d 571 (1978) (noting that public trust doctrine requires that public have use and enjoyment of beaches owned by municipality). In Neptune City, supra, we recognized that “[t]he public trust doctrine ... should be molded and extended to meet changing conditions and needs of the public it was created to benefit.” 61 N.J. at 309, 294 A.2d 47.

A.

We addressed for the first time the extent of the public’s interest in privately-owned dry sand beaches in Matthews v. Bay Head Improvement Ass’n, 95 N.J. 306, 471 A.2d 355, cert. denied, 469 U.S. 821, 105 S.Ct. 93, 83 L.Ed.2d 39 (1984). The key issue in that case was whether the public has the right of access to tidal lands through privately-owned dry sands. Id. at 312, 471 A.2d 355. The municipality did not own any of the dry land. Ibid. Because the Bay Head Improvement Association (Improvement Association) either owned or leased the beachfront parcels so that *64its members had access to Bay Head’s one-and-one-quarter mile beachfront, the public could not access the ocean through the dry sand. Id. at 314-15, 471 A.2d 355. The plaintiffs filed suit seeking the right of access to the beaches in Bay Head as public trust lands, and the right to use private property fronting on the ocean incidental to the public’s right under the public trust doctrine. Id. at 312-13, 471 A.2d 355. The trial court granted summary judgment in favor of the defendant and dismissed the complaint. Id. at 313, 471 A. 2d 355. The Appellate Division affirmed with one judge dissenting. The plaintiff appealed as of right, Rule 2:2-l(a), and we granted the plaintiffs petition for certification. Ibid.

Initially, we reviewed the development of the public trust doctrine. In describing the public’s right of entry to the water, we explained that “[t]he test is whether those means are reasonably satisfactory so that the public’s right to use the beachfront can be satisfied.” Id. at 325, 471 A.2d 355. We found that the public cannot reasonably enjoy the ocean unless there is also available the use of the dry sand to rest and relax. Ibid. We concluded that “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.” Ibid, (footnote omitted). We emphasized that each particular circumstance will determine “[precisely what privately-owned upland sand area will be available and required to satisfy the public’s rights under the public trust doctrine[J” Id. at 326, 471 A. 2d 355. In striking a fair balance between the rights of the public and the interests of the private owner, we listed the following factors that should be considered: (1) the location of the dry sand in relation to the foreshore; (2) the extent and availability of publicly-owned beaches; (3) the nature and extent of the public demand; and (4) the owner’s usage of the dry sand area. Ibid.

In applying those factors, we first noted that the Improvement Association was a quasi-public organization whose activities “paral*65leled those of a municipality.” Id. at 330, 471 A.2d 355. Next, we found that there was no publicly-owned beach and that the Improvement Association’s limited membership to the residents prevented the public from enjoying the beach and ocean. Id. at 331, 471 A.2d 355. Consequently, we concluded that the record demonstrated “that a right of access to the beach ... as well as the right to use the Association’s upland dry sand[]” area was required. Id. at 333, 471 A.2d 355.

Thus, in Matthews, the entirety of the beach was privately-owned, but by a quasi-public organization. Even though we held that those circumstances dictated that the public have reasonable access to the ocean and the use of privately-owned dry sand beach, we recognized that each case must be decided “upon the specific facts in controversy.” Ibid.

B.

This case requires us to apply the Matthews test in evaluating the competing interests of the public to reasonable access and use of the ocean and dry beach against the interests of the private landowner to use and enjoy its land. The first factor of the Matthews test, the location of the dry sand area in relation to the foreshore, weighs in favor of plaintiff. The dry sand area of the Beach Club is directly adjacent to the wet sand and ocean and there are no barriers or structures creating any division between the two areas. Further, there is no direct access to the water except over the Beach Club property. In fact, defendant concedes that access to the ocean may be over its privately-owned property, and that the public has the right to use its property “at and below the mean high water line.”

The second factor, the extent and availability of publicly-owned upland sand area, weighs in favor of defendant. The evidence shows that Seapointe is adjacent to the Beach Club and that Seapointe allows the public access and use of its beach. Thus, there is a beach in close proximity to the Beach Club that will *66permit the public to enjoy the beach without interfering with the rights of a private beach owner.

The third factor, the nature and extent of public demand, weighs in favor of plaintiff, at least with regard to access. There are a large number of multi-story condominium buildings in the Diamond Beach neighborhood adjacent to the Beach Club property that were constructed on land sold to the developers by one of defendant’s principals. The numerous residents of those buildings seek to use the ocean. Thus, there is a public demand for reasonable access across the Beach Club’s private property.

The final factor is the usage of the upland sand by the owner. Defendant uses its beach as a private-for-profit beach club, and offers two types of memberships, an annual membership and a lifetime easement. In 2003, the annual membership fee was $700 and the lifetime easement fee was $10,000. Defendant provides its members with security, beach maintenance, lifeguards, and some recreational activities. The only improvement on the land is the boardwalk. Therefore, I find that this factor weighs in favor of defendant.

The majority opinion discusses the La Vida CAFRA permit and concludes from its language that “it may be inferred from this section of the permit that open access and use was ceded to the public by La Vida.” Ante at 58, 879 A.2d at 123. It recognizes, however, that none of the parties make this argument and concludes that “we, therefore, will not here consider the permit dispositive on the issue of public use.” Ibid. The majority also notes that the DEP has noticed La Vida and the Beach Club for signage infractions, dune destruction, and improper erection of structures on the beach. Id. at 58, 879 A.2d at 123. Tellingly, the DEP has not issued a notice of violation to the Beach Club for failure to allow the public to use its beach. Irrespective of that, the majority, in part, relies on the La Vida CAFRA permit conditions to conclude that the public trust doctrine should be expanded to make the upland sands of the Beach Club available to the general public. The Court, however, should not consider the *67La Vida CAFRA permit because of its ambiguous language. Unlike the La Vida permit, the 1987 CAFRA permit for the adjacent Seapointe property development made clear that the beach in front of Seapointe was required to be open to the public. Most importantly, because the parties did not brief this issue, I do not consider the conditions of the La Vida CAFRA permit in my discussion.

In balancing the above factors, it is obvious that the greater weight favors access to the ocean and the use of the water below the mean high water mark. Defendant recognizes and concedes that plaintiff has a right of access over its land and the use of the ocean. However, because there is an adjacent beach to defendant’s private property that is available to the public, I find no need to apply the public trust doctrine beyond access to the ocean and access to a reasonable area across defendant’s property to the adjacent Seapointe. In my view, that strikes a proper balance between the public trust doctrine, which requires reasonable access and use of the ocean and beaches, and a private owner’s right to use its private property as it deems fit. The record here amply supports the conclusion that access to the water and to Seapointe over defendant’s privately-owned beachfront will reasonably satisfy the public need at this time. I see no justification to exceed that minor intrusion.

II.

I agree with the position of the State before the trial court that the three-foot access across defendant’s land to Seapointe was insufficient and that the public was entitled to unrestricted use of a reasonable area of dry sand, “which [the State] considers to be an area at least 10 feet wide above the mean high water line.” In my view, ten feet is a reasonable area for a family to safely traverse defendant’s property to reach Seapointe without excessively impinging on defendant’s property rights. Moreover, for those members of the public who elect to use the beach and ocean at that location, the ten-foot area will also give them limited use of *68the beach. Under the circumstances of this case, that is the only-reasonable accommodation that we should require to enforce the public trust doctrine.

Justice RIVERA-SOTO joins in this opinion.

For affirmance—Chief Justice PORITZ, Justices LONG, LaVECCHIA, ZAZZALI, and ALBIN—5.

For reversal and reinstatement—Justices WALLACE and RIVERA-SOTO—2.

Mr. Justice Stewart

delivered the opinion of the Court.

A group of labor union members who engaged in peaceful primary picketing within the confines of a privately owned shopping center were threatened by an agent of the owner with arrest for criminal trespass if they did not depart. The question presented is whether this threat violated the National Labor Relations Act, 49 Stat. 449, as amended, 61 Stat. 136, 29 U. S. C. § 151 et seq. The National Labor Relations Board concluded that it did, 205 N. L. R. B. 628, and the Court of Appeals for the Fifth Circuit agreed. 501 F. 2d 161. We granted certiorari because of the seemingly important questions of federal law presented. 420 U. S. 971.

*509t — H

The petitioner, Scott Hudgens, is the owner of the North DeKalb Shopping Center, located in suburban Atlanta, Ga. The center consists of a single large building with an enclosed mall. Surrounding the building is a parking area which can accommodate 2,640 automobiles. The shopping center houses 60 retail stores leased to various businesses. One of the lessees is the Butler Shoe Co. Most of the stores, including Butler’s, can be entered only from the interior mall.

In January 1971, warehouse employees of the Butler Shoe Co. went on strike to protest the company’s failure to agree to demands made by their union in contract negotiations.1 The strikers decided to picket not only Butler’s warehouse but its nine retail stores in the Atlanta area as well, including the store in the North DeKalb Shopping Center. On January 22, 1971, four of the striking warehouse employees entered the center’s enclosed mall carrying placards which read: “Butler Shoe Warehouse on Strike, AFL-CIO, Local 315.” The general manager of the shopping center informed the employees that they could not picket within the mall or on the parking lot and threatened them with arrest if they did not leave. The employees departed but returned a short time later and began picketing in an area of the mall immediately adjacent to the entrances of the Butler store. After the picketing had continued for approximately 30 minutes, the shopping center manager again informed the pickets that if they did not leave they would be arrested for trespassing. The pickets departed.

The union subsequently filed with the Board an unfair labor practice charge against Hudgens, alleging interference. with rights protected by § 7 of the Act, 29 *510U. S. C. § 157.2 Relying on this Court’s decision in Food Employees v. Logan Valley Plaza, 391 U. S. 308, the Board entered a cease-and-desist order against Hudgens, reasoning that because the warehouse employees enjoyed a First Amendment right to picket on the shopping center property, the owner’s threat of arrest violated § 8 (a)(1) of the Act, 29 U. S. C. § 158 (a)(1).3 Hudgens filed a petition for review in the Court of Appeals for the Fifth Circuit. Soon thereafter this Court decided Lloyd Corp. v. Tanner, 407 U. S. 551, and Central Hardware Co. v. NLRB, 407 U. S. 539, and the Court of Appeals remanded the case to the Board for reconsideration in light of those two decisions.

The Board, in turn, remanded to an Administrative Law Judge, who made findings of fact, recommendations, and conclusions to the effect that Hudgens had committed an unfair labor practice by excluding the pickets. *511This result was ostensibly reached under the statutory criteria set forth in NLRB v. Babcock & Wilcox Co., 351 U. S. 105, a case which held that union organizers who seek to solicit for union membership may intrude on an employer’s private property if no alternative means exist for communicating with the employees. But the Administrative Law Judge’s opinion also relied on this Court’s constitutional decision in Logan Valley for a “realistic view of the facts.” The Board agreed with the findings and recommendations of the Administrative Law Judge, but departed somewhat from his reasoning. It concluded that the pickets were within the scope of Hudgens’ invitation to members of the public to do business at the shopping center, and that it was, therefore, immaterial whether or not there existed an alternative means of communicating with the customers and employees of the Butler store.4

Hudgens again petitioned for review in the Court of Appeals for the Fifth Circuit, and there the Board changed its tack and urged that the case was controlled not by Babcock & Wilcox, but by Republic Aviation Corp. v. NLRB, 324 U. S. 793, a case which held that an employer commits an unfair labor practice if he enforces a no-solicitation rule against employees on his premises who are also union organizers, unless he can prove that the rule is necessitated by special circumstances. The Court of Appeals enforced the Board’s cease-and-desist order but on the basis of yet another theory. While acknowledging that the source of the pickets’ rights was § 7 of the Act, the Court of Appeals held that the competing constitutional and property .right considerations discussed in Lloyd Corp. v. Tanner, supra, “burde[n] the General Counsel with the duty to *512prove that other locations less intrusive upon Hudgens’ property rights than picketing inside the mall were either unavailable or ineffective,” 501 F. 2d, at 169, and that the Board’s General Counsel had met that burden in this case.

In this Court the petitioner Hudgens continues to urge that Babcock & Wilcox Co. is the controlling precedent, and that under the criteria of that case the judgment of the Court of Appeals should be reversed. The respondent union agrees that a statutory standard governs, but insists that, since the § 7 activity here was not organizational as in Babcock but picketing in support of a lawful economic strike, an appropriate accommodation of the competing interests must lead to an affirmance of the Court of Appeals’ judgment. The respondent Board now contends that the conflict between employee picketing rights and employer property rights in a case like this must be measured in accord with the commands of the First Amendment, pursuant to the Board’s asserted understanding of Lloyd Corp. v. Tanner, supra, and that the judgment of the Court of Appeals should be affirmed on the basis of that standard.

II

As the above recital discloses, the history of this litigation has been a history of shifting positions on the part of the litigants, the Board, and the Court of Appeals. It has been a history, in short, of considerable confusion, engendered at least in part by decisions of this Court that intervened during the course of the litigation. In the present posture of the case the most basic question is whether the respective rights and liabilities of the parties are to be decided under the criteria of the National Labor Relations Act alone, under a First Amendment standard, or under some combination of the two. It is to that question, accordingly, that we now turn.

*513It is, of course, a commonplace that the constitutional guarantee of free speech is a guarantee only against abridgment by government, federal or state. See Columbia Broadcasting System, Inc. v. Democratic National Comm., 412 U. S. 94. Thus, while statutory or common law may in some situations extend protection or provide redress against a private corporation or person who seeks to abridge the free expression of others, no such protection or redress is provided by the Constitution itself.

This elementary proposition is little more than a truism. But even truisms are not always unexceptionably true, and an exception to this one was recognized almost 30 years ago in Marsh v. Alabama, 326 U. S. 501. In Marsh, a Jehovah’s Witness who had distributed literature without a license on a sidewalk in Chickasaw, Ala., was convicted of criminal trespass. Chickasaw was a so-called company town, wholly owned by the Gulf Shipbuilding Corp. It was described in the Court’s opinion as follows:

“Except for [ownership by a private corporation] it has all the characteristics of any other American town. The property consists of residential buildings, streets, a system of sewers, a sewage disposal plant and a ‘business block’ on which business places are situated. A deputy of the Mobile County Sheriff, paid by the company, serves as the town’s policeman. Merchants and service establishments have rented the stores and business places on the business block and the United States uses one of the places as a post office from which six carriers deliver mail to the people of Chickasaw and the adjacent area. The town and the surrounding neighborhood, which can not be distinguished from the Gulf property by anyone not familiar with the property lines, are thickly *514settled, and according to all indications the residents use the business block as their regular shopping center. To do so, they now, as they have for many years, make use of a company-owned paved street and sidewalk located alongside the store fronts in order to enter and leave the stores and the post office. Intersecting company-owned roads at each end of the business block lead into a four-lane public highway which runs parallel to the business block at a distance of thirty feet. There is nothing to stop highway traffic from coming onto the business block and upon arrival a traveler may make free use of the facilities available there. In short the town and its shopping district are accessible to and freely used by the public in general and there is nothing to distinguish them from any other town and shopping center except the fact that the title to the property belongs to a private corporation.” Id,., at 502-503.

The Court pointed out that if the “title” to Chickasaw had “belonged not to a private but to a municipal corporation and had appellant been arrested for violating a municipal ordinance rather than a ruling by those appointed by the corporation to manage a company town it would have been clear that appellant’s conviction must be reversed.” Id., at 504. Concluding that Gulfs “property interests” should not be allowed to lead to a different result in Chickasaw, which did “not function differently from any other town,” id., at 506-508, the Court invoked the First and Fourteenth Amendments to reverse the appellant’s conviction.

It was the Marsh case that in 1968 provided the foundation for the Court’s decision in Amalgamated Food Employees Union v. Logan Valley Plaza, 391 U. S. 308. That case involved peaceful picketing within a large *515shopping center near Altoona, Pa. One of the tenants of the shopping center was a retail store that employed a wholly nonunion staff. Members of a local union picketed the store, carrying signs proclaiming that it was nonunion and that its employees were not receiving union wages or other union benefits. The picketing took place on the shopping center’s property in the immediate vicinity of the store. A Pennsylvania court issued an injunction that required all picketing to be confined to public areas outside the shopping center, and the Supreme Court of Pennsylvania affirmed the issuance of this injunction. This Court held that the doctrine of the Marsh case required reversal of that judgment.

The Court’s opinion pointed out that the First and Fourteenth Amendments would clearly have protected the picketing if it had taken place on a public sidewalk:

“It is clear that if the shopping center premises were not privately owned but instead constituted the business area of a municipality, which they to a large extent resemble, petitioners could not be barred from exercising their First Amendment rights there on the sole ground that title to the property was in the municipality. Lovell v. Griffin, 303 U. S. 444 (1938); Hague v. CIO, 307 U. S. 496 (1939); Schneider v. State, 308 U. S. 147 (1939); Jamison v. Texas, 318 U. S. 413 (1943). The essence of those opinions is that streets, sidewalks, parks, and other similar public places are so historically associated with the exercise of First Amendment rights that access to them for the purpose of exercising such rights cannot constitutionally be denied broadly and absolutely.” 391 U. S., at 315.

The Court’s opinion then reviewed the Marsh case in detail, emphasized the similarities between the business *516block in Chickasaw, Ala., and the Logan Valley shopping center, and unambiguously concluded:

“The shopping center here is clearly the functional equivalent of the business district of Chickasaw involved in Marsh.” 391 U. S., at 318.

Upon the basis of that conclusion, the Court held that the First and Fourteenth Amendments required reversal of the judgment of the Pennsylvania Supreme Court.

There were three dissenting opinions in the Logan Valley case, one of them by the author of the Court’s opinion in Marsh, Mr. Justice Black. His disagreement with the Court’s reasoning was total:

“In affirming petitioners’ contentions the majority opinion relies on Marsh v. Alabama, supra, and holds that respondents’ property has been transformed to some type of public property. But Marsh was never intended to apply to this kind of situation. Marsh dealt with the very special situation of a company-owned town, complete with streets, alleys, sewers, stores, residences, and everything else that goes to make a town. ... I can find very little resemblance between the shopping center involved in this case and Chickasaw, Alabama. There are no homes, there is no sewage disposal plant, there is not even a post office on this private property which the Court now considers the equivalent of a ‘town.’ ” 391 U. S., at 330-331 (footnote omitted).

“The question is, Under what circumstances can private property be treated as though it were public? The answer that Marsh gives is when that property has taken on all the attributes of a town, i. e., ‘residential buildings, streets, a system of sewers, a sewage disposal plant and a “business block” on which business places are situated.’ 326 U. S., at 502. I *517can find nothing in Marsh which indicates that if one of these features is present, e. g., a business district, this is sufficient for the Court to confiscate a part of an owner’s private property and give its use to people who want to picket on it.” Id., at 332. “To hold that store owners are compelled by law to supply picketing areas for pickets to drive store customers away is to create a court-made law wholly disregarding the constitutional basis on which private ownership of property rests in this country. . . .” Id., at 332-333.

Four years later the Court had occasion to reconsider the Logan Valley doctrine in Lloyd Corp. v. Tanner, 407 U. S. 551. That case involved a shopping center covering some 50 acres in downtown Portland, Ore. On a November day in 1968 five young people entered the mall of the shopping center and distributed handbills protesting the then ongoing American military operations in Vietnam. Security guards told them to leave, and they did so, “to avoid arrest.” Id., at 556. They subsequently brought suit in a Federal District Court, seeking declaratory and injunctive relief. The trial court ruled’ in their favor, holding that the distribution of handbills on the shopping center’s property was protected by the First and Fourteenth Amendments. The Court of Appeals for the Ninth Circuit affirmed the judgment, 446 F. 2d 545, expressly relying on this Court’s Marsh and Logan Valley decisions. This Court reversed the judgment of the Court of Appeals.

The Court in its Lloyd opinion did not say that it was overruling the Logan Valley decision. Indeed, a substantial portion of the Court’s opinion in Lloyd was devoted to pointing out the differences between the two cases, noting particularly that, in contrast to the hand-billing in Lloyd, the picketing in Logan Valley had been *518specifically directed to a store in the shopping center and the pickets had had no other reasonable opportunity to reach their intended audience. 407 U. S., at 561-567.5 But the fact is that the reasoning of the Court’s opinion in Lloyd cannot be squared with the reasoning of the Court’s opinion in Logan Valley.

It matters not that some Members of the Court may continue to believe that the Logan Valley case was rightly decided.6 Our institutional duty is to follow until changed the law as it now is, not as some Members of the Court might wish it to be. And in the performance of that duty we make clear now, if it was not clear before, that the rationale of Logan Valley did not survive the Court’s decision in the Lloyd case.7 Not only did the Lloyd opinion incorporate lengthy excerpts from two of the dissenting opinions in Logan Valley, 407 U. S., at 562-563, 565; the ultimate holding in Lloyd amounted to a total rejection of the holding in Logan Valley:

“The basic issue in this case is whether respondents, in the exercise of asserted First Amendment *519rights, may distribute handbills on Lloyd’s private property contrary to its wishes and contrary to a policy enforced against all handbilling. In addressing this issue, it must be remembered that the First and Fourteenth Amendments safeguard the rights of free speech and assembly by limitations on state action, not on action by the owner of private property used nondiscriminatorily for private purposes only....” 407 U. S., at 567.

“Respondents contend . . . that the property of a large shopping center is ‘open to the public,’ serves the same purposes as a ‘business district’ of a municipality, and therefore has been dedicated to certain types of public use. The argument is that such a center has sidewalks, streets, and parking areas which are functionally similar to facilities customarily provided by municipalities. It is then asserted that all members of the public, whether invited as customers or not, have the same right of free speech as they would have on the similar public facilities in the streets of a city or town.

“The argument reaches too far. The Constitution by no means requires such an attenuated doctrine of dedication of private property to public use. The closest decision in theory, Marsh v. Alabama, supra, involved the assumption by a private enterprise of all of the attributes of a state-created municipality and the exercise by that enterprise of semiofficial municipal functions as a delegate of the State. In effect, thé owner of the company town was performing the full spectrum of municipal powers and stood in the shoes of the State. In the instant case there is no comparable assumption or exercise of municipal functions or power.” Id., at 568-569 (footnote omitted).

*520“We hold that there has been no such dedication of Lloyd’s privately owned and operated shopping center to public use as to entitle respondents to exercise therein the asserted First Amendment rights. . . Id., at 570.

If a large self-contained shopping center is the functional equivalent of a municipality, as Logan Valley held, then the First and Fourteenth Amendments would not permit control of speech within such a center to depend upon the speech’s content.8 For while a municipality may constitutionally impose reasonable time, place, and manner regulations on the use of its streets and sidewalks for First Amendment purposes, see Cox v. New Hampshire, 312 U. S. 569; Poulos v. New Hampshire, 345 U. S. 395, and may even forbid altogether such use of some of its facilities, see Adderley v. Florida, 385 U. S. 39; what a municipality may not do under the First and Fourteenth Amendments is to discriminate in the regulation of expression on the basis of the content of that expression, Erznoznik v. City of Jacksonville, 422 U. S. 205. “[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Police Dept. of Chicago v. Mosley, 408 U. S. 92, 95.9 It conversely follows, therefore, that if the respondents in the Lloyd case did not have a First Amendment right to enter that shopping center to distribute handbills concerning Vietnam, then the pickets in the present case did not have a First Amendment *521right to enter this shopping center for the purpose of advertising their strike against the Butler Shoe Co.

We conclude, in short, that under the present state of the law the constitutional guarantee of free expression has no part to play in a case such as this.

Ill

From what has been said it follows that the rights and liabilities of the parties in this case are dependent exclusively upon the National Labor Relations Act. Under the Act the task of the Board, subject to review by the courts, is to resolve conflicts between § 7 rights and private property rights, “and to seek a proper accommodation between the two.” Central Hardware Co. v. NLRB, 407 U. S., at 543. What is “a proper accommodation” in any situation may largely depend upon the content and the context of the § 7 rights being asserted. The task of the Board and the reviewing courts under the Act, therefore, stands in conspicuous contrast to the duty of a court in applying the standards of the First Amendment, which requires “above all else” that expression must not be restricted by government “because of its message, its ideas, its subject matter, or its content.”

In the Central Hardware case, and earlier in the case of NLRB v. Babcock & Wilcox Co., 351 U. S. 105, the Court considered the nature of the Board's task in this area under the Act. Accommodation between employees’ § 7 rights and employers’ property rights, the Court said in Babcock & Wilcox, “must be obtained with as little destruction of one as is consistent with the maintenance of the other.” 351 U. S., at 112.

Both Central Hardware and Babcock & Wilcox involved organizational activity carried on by nonemploy-ees on the employers’ property.10 The context of the § 7 *522activity in the present case was different in several respects which may or may not be relevant in striking the proper balance. First, it involved lawful economic strike activity rather than organizational activity. See Steelworkers v. NLRB, 376 U. S. 492, 499; Bus Employees v. Missouri, 374 U. S. 74, 82; NLRB v. Erie Resistor Corp., 373 U. S. 221, 234. Cf. Houston Insulation Contractors Assn. v. NLRB, 386 U. S. 664, 668-669. Second, the § 7 activity here was carried on by Butler’s employees (albeit not employees of its shopping center store), not by outsiders. See NLRB v. Babcock & Wilcox Co., supra, at 111-113. Third, the property interests impinged upon in this case were not those of the employer against whom the § 7 activity was directed, but of another.11

The Babcock & Wilcox opinion established the basic objective under the Act: accommodation of § 7 rights and private property rights “with as little destruction of one as is consistent with the maintenance of the other/’12 The locus of that accommodation, however, may fall at differing points along the spectrum depending on the nature and strength of the respective § 7 rights and private property rights asserted in any given context. In each generic situation, the primary responsibility for making this accommodation must rest with the Board in the first instance. See NLRB v. Babcock & Wilcox, supra, at 112; cf. NLRB v. Erie Resistor Corp., supra, at 235-*523236; NLRB v. Truckdrivers Union, 353 U. S. 87, 97. “The responsibility to adapt the Act to changing patterns of industrial life is entrusted to the Board.” NLRB v. Weingarten, Inc., 420 U. S. 251, 266.

For the reasons stated in this opinion, the judgment is vacated and the case is remanded to the Court of Appeals with directions to remand to the National Labor Relations Board, so that the case may be there considered under the statutory criteria of the National Labor Relations Act alone.

It is so ordered.

Mr. Justice Stevens took no part in the consideration or decision of this case.

Mr. Justice Powell,

with whom The Chief Justice joins, concurring.

Although I agree with Mr. Justice White’s view concurring in the result that Lloyd Corp. v. Tanner, 407 U. S. 551 (1972), did not overrule Food Employees v. Logan Valley Plaza, 391 U. S. 308 (1968), and that the present case can be distinguished narrowly from Logan Valley, I nevertheless have joined the opinion of the Court today.

The law in this area, particularly with respect to whether First Amendment or labor law principles are applicable, has been less than clear since Logan Valley analogized a shopping center to the “company town” in Marsh v. Alabama, 326 U. S. 501 (1946). Mr. Justice Black, the author of the Court’s opinion in Marsh, thought the decisions were irreconcilable.1 I now agree *524with Mr. Justice Black that the opinions in these cases cannot be harmonized in a principled way. Upon more mature thought, I have concluded that we would have been wiser in Lloyd Corp. to have confronted this disharmony rather than draw distinctions based upon rather attenuated factual differences.2

The Court’s opinion today clarifies the confusion engendered by these cases by accepting Mr. Justice Black’s reading of Marsh and by recognizing more sharply the distinction between the First Amendment and labor law issues that may arise in cases of this kind. It seems to me that this clarification of the law is desirable.

Mr. Justice White,

concurring in the result.

While I concur in the result reached by the Court, I find it unnecessary to inter Food Employees v. Logan Valley Plaza, 391 U. S. 308 (1968), and therefore do not join the Court’s opinion. I agree that “the constitutional guarantee of free expression has no part to play in a case such as this,” ante, at 521; but Lloyd Corp. v. Tanner, 407 U. S. 551 (1972), did not overrule Logan Valley, either expressly or implicitly, and I would not, somewhat after the fact, say that it did.

One need go no further than Logan Valley itself, for the First Amendment protection established by Logan Valley was expressly limited to the picketing of a specific store for the purpose of conveying information with respect to the operation in the shopping center of that store:

“The picketing carried on by petitioners was *525directed specifically at patrons of the Weis Market located within the shopping center and the message sought to be conveyed to the public concerned the manner in which that particular market was being operated. We are, therefore, not called upon to consider whether respondents’ property rights could, consistently with the First Amendment, justify a bar on picketing which was not thus directly related in its purpose to the use to which the shopping center property was being put.” 391 U. S., at 320 n. 9.

On its face, Logan Valley does not cover the facts of this case. The pickets of the Butler Shoe Co. store in the North DeKalb Shopping Center were not purporting to convey information about the “manner in which that particular [store] was being operated” but rather about the operation of a warehouse not located on the center’s premises. The picketing was thus not “directly related in its purpose to the use to which the shopping center property was being put.”

The First Amendment question in this case was left open in Logan Valley. I dissented in Logan Valley, 391 U. S., p. 337, and I see no reason to extend it further. Without such extension, the First Amendment provides no protection for the picketing here in issue and the Court need say no more. Lloyd v. Tanner is wholly consistent with this view. There is no need belatedly to overrule Logan Valley, only to follow it as it is.

Mr. Justice Marshall,

with whom Mr. Justice Brennan joins, dissenting.

The Court today holds that the First Amendment poses no bar to a shopping center owner’s prohibiting speech within his shopping center. After deciding this far-reaching constitutional question, and overruling Food *526Employees v. Logan Valley Plaza, 391 U. S. 308 (1968), in the process, the Court proceeds to remand for consideration of the statutory question whether the shopping center owner in this case unlawfully interfered with the Butler Shoe Co. employees’ rights under § 7 of the National Labor Relations Act, 29 U. S. C. § 157.

In explaining why it addresses any constitutional issue at all, the Court observes simply that the history of the litigation has been one of “shifting positions on the part of the litigants, the Board, and the Court of Appeals,” ante, at 512, as to whether relief was being sought, or granted, under the First Amendment, under § 7 of the Act, or under some combination of the two. On my reading, the Court of Appeals’ decision and, even more clearly, the Board’s decision here for review, were based solely on § 7, not on the First Amendment; and this Court ought initially consider the statutory question without reference to the First Amendment — the question on which the Court remands. But even under the Court’s reading of the opinions of the Board and the Court of Appeals, the statutory question on which it remands is now before the Court. By bypassing that question and reaching out to overrule a constitutionally based decision, the Court surely departs from traditional modes of adjudication.

I would affirm the judgment of the Court of Appeals on purely statutory grounds. And on the merits of the only question that the Court decides, I dissent from the overruling of Logan Valley.

I

The Court views the history of this litigation as one of “shifting positions” and “considerable confusion.” To be sure, the Board’s position has not been constant. But the ultimate decisions by the Administrative Law Judge *527and by the Board rested solely on § 7 of the NLRA, not on the First Amendment.

As the Court indicates, the Board’s initial determination that petitioner violated §8 (a)(1) of the Act, 29 U. S. C. § 158 (a)(1), was based on its reading of Logan Valley, a First Amendment case. But before the Court of Appeals reviewed this initial determination, this Court decided Lloyd Corp. v. Tanner, 407 U. S. 551 (1972), and Central Hardware Co. v. NLRB, 407 U. S. 539 (1972), and the Board moved to have the case remanded for reconsideration in light of these two decisions. The Court of Appeals granted the motion.

Lloyd and Central Hardware demonstrated, each in its own way, that Logan Valley could not be read as broadly as some Courts of Appeals had read it. And together they gave a signal to the Board and to the Court of Appeals that it would be wise to pass upon statutory contentions in cases of this sort before turning to broad constitutional questions, the answers to which could no longer be predicted with certainty. See Central Hardware, supra, at 548, 549 (Maeshall, J., dissenting); Lloyd, supra, at 584 (Marshall, J., dissenting). Taking heed of this signal, the Administrative Law Judge and the Board proceeded on remand to assess the conflicting rights of the employees and the shopping center owner within the framework of the NLRA. The Administrative Law Judge’s recommendation that petitioner be found guilty of a § 8 (a)(1) violation rested explicitly on the statutory test enunciated by this Court in NLRB v. Babcock & Wilcox Co., 351 U. S. 105 (1956). That the Administrative Law Judge supported his “realistic view of the facts” by referring to this Court’s “factual view” of the Logan Valley case surely cannot be said to alter the judge’s explicitly stated legal theory, which was a statutory one.

*528Even more clearly, the Board’s rationale in agreeing with the Administrative Law Judge’s recommendation was exclusively a statutory one. Nowhere in the Board’s decision, Hudgens v. Local SIS, Retail, Wholesale & Dept. Store Union, 205 N. L. R. B. 628 (1973), is there any reference to the First Amendment or any' constitutionally based decision. The Board reached its result “for the reasons specifically set forth in Frank Vis-ceglia and Vincent Visceglia, t/a Peddie Buildings,”1 ibid., a case decided solely on § 7 grounds. In Visceglia the Board had specifically declined to treat the picketing area in question as the functional equivalent of a business block and rejected the applicability of Logan Valley’s First Amendment analysis, finding an interference with § 7 rights under a “modified” Babcock & Wilcox test.2 When the Board in this case relied upon the rationale of Visceglia, it was evidently proceeding under the assumption that the First Amendment had no application. Its ultimate conclusion that petitioner violated §8 (a)(1) of the Act was purely the result of an “accommodation between [his] property rights and the employees’ Section 7 rights.” 205 N. L. R. B. 628.

The Court acknowledges that the Court of Appeals’ enforcement of the Board’s order was based on its view of the employees’ § 7 rights. But the Court suggests that the following reference to Lloyd, a constitutional *529case, indicates that the Court of Appeals’ decision was infected with constitutional considerations:

“Lloyd burdens the General Counsel with the duty to prove that other locations less intrusive upon Hudgens’ property rights than picketing inside the mall were either unavailable or ineffective.” 501 F. 2d 161, 169.

A reading of the entire Court of Appeals’ opinion, however, demonstrates that this language was not intended to inject any constitutional considerations into the case. The Court of Appeals’ analysis began with an evaluation of the statutory criteria urged by the parties.3 Rejecting both parties’ formulations of the appropriate statutory standard, the Court of Appeals adopted a modified version of an approach, suggested by an amicus, that incorporates a consideration of the relationship of the protest to the use to which the private property in question is put, and the availability of reasonably effective alternative means of communicating with the intended audience. While the amicus had derived its approach from Lloyd and Logan Valley, two constitutional cases, the Court of Appeals was careful to note that the approach it applied was a statutory, not a constitutional one:

“Section 7 rights are . not necessarily coextensive *530with constitutional rights, see Central Hardware v. NLRB, supra ([Marshall], J., dissenting). Nevertheless, we agree that the rule suggested by amicus, although having its genesis in the constitutional issues raised in Lloyd, isolates the factors relevant to determining when private property rights of a shopping center owner should be required to yield to the section 7 rights of labor picketers.” 501 F. 2d, at 167.

With that explanation of the Court of Appeals’ view of the relevance of Lloyd, it is evident that the subsequent reference to Lloyd, quoted out of context by the Court, was not intended to alter the purely statutory basis of the Court of Appeals’ decision.4

In short, the Board’s decision was clearly unaffected by constitutional considerations, and I do not read the Court of Appeals’ opinion as intimating that its statutory result was constitutionally mandated. In its present posture, the case presents no constitutional question to the Court. Surely it is of no moment that the Board through its counsel now urges this Court to decide, as part of its statutory analysis, what result is compelled by the First Amendment. The posture of the case is determined by the decisions of the Board and the Court of Appeals, not by the arguments advanced in the Board’s brief. Since I read those decisions as purely statutory ones, I would proceed to consider the purely statutory question whether, assuming that petitioner is not restricted by the First Amendment, his actions never*531theless violated § 7 of the Act. This is precisely the issue on which the Court remands the case.

At the very least it is clear that neither the Board nor the Court of Appeals decided the case solely on First Amendment grounds. The Court itself acknowledges that both decisions were based on § 7. The most that can be said, and all that the Court suggests, is that the Court of Appeals’ view of § 7 was colored by the First Amendment. But even if that were the case, this Court ought not decide any First Amendment question — particularly in a way that requires overruling one of our decisions — without first considering the statutory question without reference to the First Amendment. It is a well-established principle that constitutional questions should not be decided unnecessarily. See, e. g., Hagans v. Lavine, 415 U. S. 528, 543, 549 (1974); Rosenberg v. Fleuti, 374 U. S. 449 (1963); Ashwander v. TVA, 297 U. S. 288, 346-347 (1936) (Brandeis, J., concurring). If the Court of Appeals disregarded that principle, that is no excuse for this Court’s doing so.

As already indicated, the Board, through its counsel, urges the Court to apply First Amendment considerations in defining the scope of § 7 of the Act. The Board takes this position because it is concerned that the scope of § 7 not fall short of the scope of the First Amendment, the result of which would be that picketing employees could obtain greater protection by court suits than by invoking the procedures of the NLRA. While that general concern is a legitimate one, it does not justify the constitutional adjudication undertaken by the Court. If it were undisputed that the pickets in this case enjoyed some degree of First Amendment protection against interference by petitioner, it might be difficult to separate a consideration of the scope of that First Amendment protection from an analysis of the scope of *532protection afforded by § 7. But the constitutional question that the Court decides today is whether the First Amendment operates to restrict petitioner’s actions in any way at all, and that question is clearly severable, at least initially, from a consideration of § 7’s scope — as proved by the Court’s remand of the case.

Thus even if, as the Court suggests, the Court of Appeals’ view of § 7 was affected by the First Amendment, the Court still could have proceeded initially to decide the statutory question divorced of constitutional considerations. I cannot understand the Court’s bypassing that purely statutory question to overrule a First Amendment decision less than 10 years old. And I certainly cannot understand the Court’s remand of the purely statutory question to the Board, whose decision was so clearly unaffected by any constitutional considerations that the Court does not even suggest otherwise.

II

On the merits of the purely statutory question that I believe is presented to the Court, I would affirm the judgment of the Court of Appeals. To do so, one need not consider whether consumer picketing by employees is subject to a more permissive test under § 7 than the test articulated in Babcock & Wilcox for organizational activity by nonemployees. In Babcock & Wilcox we stated that an employer “must allow the union to approach his employees on his property” 5 if the employees are “beyond the reach of reasonable efforts to communicate with them,” 351 U. S., at 113 — that is, if “other means” of communication are not “readily available.” Id., at 114. Thus the general standard that emerges *533from Babcock & Wilcox is the ready availability of reasonably effective alternative means of communication with the intended audience.

In Babcock & Wilcox itself, the intended audience was the employees of a particular employer, a limited identifiable group; and it was thought that such an audience could be reached effectively by means other than entrance onto the employer’s property — for example, personal contact at the employees’ living quarters, which were “in reasonable reach.” Id., at 113. In this case, of course, the intended audience was different, and what constitutes reasonably effective alternative means of communication also differs. As the Court of Appeals noted, the intended audience in this case “was only identifiable as part of the citizenry of greater Atlanta until it approached the store, and thus for the picketing to be effective, the location chosen was crucial unless the audience could be known and reached by other means.” 501 F. 2d, at 168. Petitioner contends that the employees could have utilized the newspapers, radio, television, direct mail, handbills, and billboards to reach the citizenry of Atlanta. But none of those means is likely to be as effective as on-location picketing: the initial impact of communication by those means would likely be less dramatic, and the potential for dilution of impact significantly greater. As this Court has observed:

“Publication in a newspaper, or by distribution of circulars, may convey the same information or make the same charge as do those patrolling a picket line. But the very purpose of a picket line is to exert influences, and it produces consequences, different from other modes of communication. The loyalties and responses evoked and exacted by picket lines are unlike those flowing from appeals by printed word.” Hughes v. Superior Court, 339 U. S. 460, 465 (1950).

*534In addition, all of the alternatives suggested by petitioner are considerably more expensive than on-site picketing. Certainly Babcock & Wilcox did not require resort to the mass media,6 or to more individualized efforts on a scale comparable to that which would be required to reach the intended audience in this case.

Petitioner also contends that the employees could have picketed on the public rights-of-way, where vehicles entered the shopping center. Quite apart from considerations of safety, that alternative was clearly inadequate: prospective customers would have had to read the picketers’ placards while driving by in their vehicles — a difficult task indeed. Moreover, as both the Board and the Court of Appeals recognized, picketing at an entrance used by customers of all retail establishments in the shopping center, rather than simply customers of the Butler Shoe Co. store, may well have invited undesirable secondary effects.

In short, I believe the Court of Appeals was clearly correct in concluding that “alternatives to picketing inside the mall were either unavailable or inadequate.” 501 F. 2d, at 169. Under Babcock & Wilcox, then, the picketing in this case was protected by § 7. I would affirm the judgment of the Court of Appeals on that basis.

Ill

Turning to the constitutional issue resolved by the Court, I cannot escape the feeling that Logan Valley has been laid to rest without ever having been accorded a proper burial. The Court today announces that “the ultimate holding in Lloyd amounted to a total rejection *535of the holding in Logan Valley.” Ante, at 518. To be sure, some Members of the Court, myself included, believed that Logan Valley called for a different result in Lloyd and alluded in dissent to the possibility that “it is Logan Valley itself that the Court finds bothersome.” 407 U. S., at 570, 584 (Marshall, J., dissenting). But the fact remains that Logan Valley explicitly reserved the question later decided in Lloyd, and Lloyd carefully preserved the holding of Logan Valley. And upon reflection, I am of the view that the two decisions are reconcilable.

A

In Logan Valley the Court was faced with union picketing against a nonunion supermarket located in a large shopping center. Our holding was a limited one:

“All we decide here is that because the shopping center serves as the community business block 'and is freely accessible and open to the people in the area and those passing through,' Marsh v. Alabama, 326 U. S., at 508, the State may not delegate the power, through the use of its trespass laws, wholly to exclude those members of the public wishing to exercise their First Amendment rights on the premises in a manner and for a purpose generally consonant with the use to which the property is actually put.” 391 U. S., at 319-320 (footnote omitted).

We carefully noted that we were “not called upon to consider whether respondents’ property rights could, consistently with the First Amendment, justify a bar on picketing which was not . . . directly related in its purpose to the use to which the shopping center property was being put.” Id., at 320 n. 9.

Lloyd involved the distribution of antiwar handbills in a large shopping center, and while some of us viewed *536the case differently, 407 U. S., at 570, 577-579 (Marshall, J., dissenting), the Court treated it as presenting the question left open in Logan Valley. But the Court did no more than decide that question. It preserved the holding of Logan Valley, as limited to cases in which (1) the picketing is directly related in its purpose to the use to which the shopping center property is put, and (2) “no other reasonable opportunities for the pickets to convey their message to their intended audience [are] available.” 407 U. S., at 563.

The Court today gives short shrift to the language in Lloyd preserving Logan Valley, and quotes extensively from language that admittedly differs in emphasis from much of the language of Logan Valley. But even the language quoted by the Court says no more than that the dedication of the Lloyd Center to public use was more limited than the dedication of the company town in Marsh v. Alabama, 326 U. S. 501 (1946), and that the pickets in Lloyd were not entitled to exercise. “the asserted First Amendment rights” — that is, the right to distribute antiwar handbills.

Any doubt about the limited scope of Lloyd is removed completely by a consideration of Central Hardware Co. v. NLRB, 407 U. S. 539 (1972), decided the same day as Lloyd. In Central Hardware the Court was faced with solicitation by nonemployee union organizers on a parking lot of a retail store that was not part of a shopping center complex — activity clearly related to the use to which the private property had been put. The Court found the activity unprotected by the First Amendment, but in a way that explicitly preserved the holding in Logan Valley. The Court could have held that the First Amendment has no application to use-related activity on privately owned business property, thereby rejecting Logan Valley, but instead the Court chose to *537distinguish the parking lot in Central Hardware from the shopping center complex in Logan Valley. Rejecting the argument that the opening of property to the general public suffices to activate the prohibition of the First Amendment, the Court explained:

“This analysis misconceives the rationale of Logan Valley. Logan Valley involved a large commercial shopping center which the Court found had displaced, in certain relevant respects, the functions of the normal municipal ‘business block.' First and Fourteenth Amendment free-speech rights were deemed infringed under the facts of that case when the property owner invoked the trespass laws of the State against the pickets.

“Before an owner of private property can be subjected to the commands of the First and Fourteenth Amendments the privately owned property must assume to some significant degree the functional attributes of public property devoted to public use. . . . The only fact relied upon for the argument that Central’s parking lots have acquired the characteristics of a public municipal facility is that they are ‘open to the public.’ Such an argument could be made with respect to almost every retail and service establishment in the country, regardless of size or location. To accept it would cut Logan Valley entirely away from its roots in Marsh.” 407 U. S., at 547 (footnote omitted).

If, as the Court tells us, “the rationale of Logan Valley .did not survive the Court’s decision in the Lloyd case,” ante, at 518, one wonders why the Court in Central Hardware, decided the same day as Lloyd, implicitly reaffirmed Logan Valley’s rationale.

*538B

It is inescapable that after Lloyd, Logan Valley remained “good law,” binding on the state and federal courts. Our institutional duty in this case, if we consider the constitutional question at all, is to examine whether Lloyd and Logan Valley can continue to stand side by side, and, if they cannot, to decide which one must fall. I continue to believe that the First Amendment principles underlying Logan Valley are sound, and were unduly limited in Lloyd. But accepting Lloyd, I am not convinced that Logan Valley must be overruled.

The foundation of Logan Valley consisted of this Court’s decisions recognizing a right of access to streets, sidewalks, parks, and other public places historically associated with the exercise of First Amendment rights. E. g., Hague v. CIO, 307 U. S. 496, 515-516 (1939) (opinion of Roberts, J.); Schneider v. State, 308 U. S. 147 (1939); Cantwell v. Connecticut, 310 U. S. 296, 308 (1940); Cox v. New Hampshire, 312 U. S. 569, 574 (1941); Jamison v. Texas, 318 U. S. 413 (1943); Saia v. New York, 334 U. S. 558 (1948). Thus, the Court in Logan Valley observed that access to such forums “cannot constitutionally be denied broadly and absolutely.” 391 U. S., at 315. The importance of access to such places for speech-related purposes is clear, for they are often the only places for effective speech and assembly.

Marsh v. Alabama, supra, which the Court purports to leave untouched, made clear that in applying those cases granting a right of access to streets, sidewalks, and other public places, courts ought not let the formalities of title put an end to analysis. The Court in Marsh observed that “the town and its shopping district are accessible to and freely used by the public in general and there is nothing to distinguish them from any other town and shopping center except the fact that the title to the *539property belongs to a private corporation.” 326 U. S., at 503. That distinction was not determinative:

“Ownership does not always mean absolute dominion. The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.” Id., at 506.

Regardless of who owned or possessed the town in Marsh, the Court noted, “the public . . . has an identical interest in the functioning of the community in such manner that the channels of communication remain free,” id., at 507, and that interest was held to prevail.

The Court adopts the view that Marsh has no bearing on this case because the privately owned property in Marsh involved all the characteristics of a typical town. But there is nothing in Marsh to suggest that its general approach was limited to the particular facts of that case. The underlying concern in Marsh was that traditional public channels of communication remain free, regardless of the incidence of ownership. Given that concern, the crucial fact in Marsh was that the company owned the traditional forums essential for effective communication; it was immaterial that the company also owned a sewer system and that its property in other respects resembled a town.

In Logan Valley we recognized what the Court today refuses to recognize — that the owner of the modern shopping center complex, by dedicating his property to public use as a business district, to some extent displaces ■the “State” from control of historical First Amendment forums, and may acquire a virtual monopoly of places suitable for effective communication. The roadways, parking lots, and walkways of the modern shopping cen*540ter may be as essential for effective speech as the streets and sidewalks in the municipal or company-owned town.7 I simply cannot reconcile the Court’s denial of any role for the First Amendment in the shopping center with Marsh’s recognition of a full role for the First Amendment on the streets and sidewalks of the company-owned town.

My reading of Marsh admittedly carried me farther than the Court in Lloyd, but the Lloyd Court remained responsive in its own way to the concerns underlying Marsh. Lloyd retained the availability of First Amendment protection when the picketing is related to the function of the shopping center, and when there is no other reasonable opportunity to convey the message to the intended audience. Preserving Logan Valley subject to Lloyd’s two related criteria guaranteed that the First Amendment would have application in those situations in which the shopping center owner had most clearly monopolized the forums essential for effective communication. This result, although not the optimal one in my view, Lloyd Corp. v. Tanner, 407 U. S., at 579-583 (Marshall, J., dissenting), is nonetheless defensible.

In Marsh, the private entity had displaced the “state” from control of all the places to which the public had historically enjoyed access for First Amendment purposes, and the First Amendment was accordingly held fully applicable to the private entity’s conduct. The shopping center owner, on the other hand, controls only *541a portion of such places, leaving other traditional public forums available to the citizen. But the shopping center owner may nevertheless control all places essential for the effective undertaking of some speech-related activities — namely, those related to the activities of the shopping center. As for those activities, then, the First Amendment ought to have application under the reasoning of Marsh, and that was precisely the state of the law after Lloyd.

The Court’s only apparent objection to this analysis is that it makes the applicability of the First Amendment turn to some degree on the subject matter of the speech. But that in itself is no objection, and the cases cited by the Court to the effect that government may not “restrict expression because of its message, its ideas, its subject matter, or its content,” Police Dept. of Chicago v. Mosley, 408 U. S. 92, 95 (1972), are simply inapposite. In those cases, it was clearly the government that was acting, and the First Amendment’s bar against infringing speech was unquestionably applicable; the Court simply held that the government, faced with a general command to permit speech, cannot choose to forbid some speech because of its message. The shopping center cases are quite different; in these cases the primary regulator is a private entity whose property has “assume[d] to some significant degree the functional attributes of public property devoted to public use.” Central Hardware Co. v. NLRB, 407 U. S., at 547. The very question in these cases is whether, and under what circumstances, the First Amendment has any application at all. The answer to that question, under the •view of Marsh described above, depends to some extent on the subject of the speech the private entity seeks to regulate, because the degree to which the private entity monopolizes the effective channels of communication *542may depend upon what subject is involved.8 This limited reference to the subject matter of the speech poses none of the dangers of government suppression or censorship that lay at the heart of the cases cited by the Court. See, e. g., Police Dept. of Chicago v. Mosley, supra, at 95-96. It is indeed ironic that those cases, whose obvious concern was the promotion of free speech, are cited today to require its surrender.

In the final analysis, the Court's rejection of any role for the First Amendment in the privately owned shopping center complex stems, I believe, from an overly formalistic view of the relationship between the institution of private ownership of property and the First Amendment’s guarantee of freedom of speech. No one would seriously question the legitimacy of the values of privacy and individual autonomy traditionally associated with privately owned property. But property that is privately owned is not always held for private use, and when a property owner opens his property to public use the force of those values diminishes. A degree of privacy is necessarily surrendered; thus, the privacy interest that petitioner retains when he leases space to 60 retail businesses and invites the public onto his land for the transaction of business with other members of the public is small indeed. Cf. Paris Adult Theatre I v. Slaton, 413 U. S. 49, 65-67 (1973). And while the owner of property open to public use may not automatically surrender any of his autonomy interest in managing the property as he sees fit, there is nothing new about the notion that that autonomy interest must be accommodated with the interests of the public. As *543this Court noted some time ago, albeit in another context:

“Property does become clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large. When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created." Munn v. Illinois, 94 U. S. 113, 126 (1877).

The interest of members of the public in communicating with one another on subjects relating to the businesses that occupy a modern shopping center is substantial. Not only employees with a labor dispute, but also consumers with complaints against business establishments, may look to the location of a retail store as the only reasonable avenue for effective communication with the public. As far as these groups are concerned, the shopping center owner has assumed the traditional role of the state in its control of historical First Amendment forums. Lloyd and Logan Valley recognized the vital role the First Amendment has to play in such cases, and I believe that this Court errs when it holds otherwise.

Jasen, J.

The parties own adjoining farm lands in the Town of Deposit, Delaware County. A 10-acre parcel of vacant land lying between their properties is the subject of this action to establish title pursuant to article 15 of the Real Property Actions and Proceedings Law.

After a trial without a jury, the County Court adjudged that neither party had established title by deed, that the plaintiff failed to establish title by adverse possession and, implicitly at least, that the defendant was entitled to possession. The Appellate Division unanimously reversed, on the law and the facts, and directed judgment for the plaintiff on the ground that title by adverse possession had been shown. The defendant’s appeal is before us as of right. (CPLR 5601, subd. [a].)

Acquisition of title by adverse possession derives historically from the early English statutes limiting actions to recover land. Truly Statutes of Limitation, their purpose was ‘ ‘ for quieting of men’s estates, and avoiding of suits (Statute of Limitations, 21 Jac. I, ch. 16). The necessary effect, by barring the real owner’s right to recover his property, is, of course, to extinguish his title and make absolute the wrongful possessor’s.

Actual possession adverse to the true owner for the statutory period is required before title will vest. In qualifying the character of the possession required at common law, it is usually said that it must be hostile and under claim of right, actual, open and notorious, exclusive and continuous. (E.g., Belotti v. Bickhardt, 228 N. Y. 296, 302.) Reduced to its essentials, this means nothing more than that there must be possession in fact of a type that would give the owner a cause of action in ejectment against the occupier throughout the prescriptive period. (See, generally, 3 American Law of Property, § 15.3.) To be sure, there are additional statutory requirements as well, whether the possession is under written instrument (Real Property Actions and Proceedings Law, §§ 511, 512) or under claim of title not written (§§ 521, 522).

In the case before -us, we find ample support in the record for the conclusion reached by the Appellate Division that the common-law requirements for acquisition of title by adverse pos*637session were satisfied. There was testimony that from about 1945 or 1946 to 1961, the 10-acre parcel had been in continuous farming use under the direction and control of plaintiff’s predecessors, in conjunction with their tenancy and then ownership of the adjoining parcel. There was additional testimony that when they purchased the adjoining parcel in 1956, the boundary lines, as pointed out, included the disputed 10 acres. The testimony of the attorney for the estate from which they purchased tendedlo confirm this. The plaintiff also accounted for use of the disputed land following his purchase in 1961. He testified that the land was posted and rented to a hunting club and that a part was rented for pasturage and haying. Also, there was evidence of fencing and substantial enclosure in conjunction with all these uses, thus satisfying the statute. (Real Property Actions and Proceedings Law, § 512.)

Because the plaintiff was in possession for less than 15 years,* it was necessary for him to tack his adverse possession to that of his predecessor to satisfy the applicable statutory period. (Former Civ. Prac. Act, § 34.) The question arises whether this was proper because the parcel adversely possessed was not within the description of the deed to the plaintiff.

The rule is that successive adverse possessions of property omitted from a deed description, especially contiguous property, may be tacked if it appears that the adverse possessor intended to and actually turned over possession of the undescribed part with the portion of the land included in the deed. (Belotti v. Bickhardt, 228 N. Y. 296, 303, 308, supra; Adverse Possession — Tacking, Ann., 17 ALR 2d 1128, 1131-1132; 3 Ajnerican Law of Property, § 15.10.) Because the possessory title is entirely an incident of the adverse holder’s possession, transfer of that possession, even by parol, effects a transfer of the possessory interest. (3 American Law of Property, § 15.10.) The circumstances of this case are entirely consistent with a finding that plaintiff’s predecessors intended to and actually turned over their possessory interest in the 10-acre parcel. Hence, the tacking was proper.

*638Accordingly, the order of the Appellate Division should be affirmed.

Chief Judge Breitel and Judges Gabbielli, Jones, Wachtleb, Babin and Stevens concur.

Order affirmed, with costs.

*394Pearson, J.

Land surveying is an ancient art but not one free of the errors that often creep into the affairs of men. In this case, we are presented with the question of what happens when the descriptions in deeds do not fit the land the deed holders are occupying. Defendants appeal from a decree quieting title in the plaintiffs of a tract of land on the shore of Hood Canal in Mason County.

At least as long ago as 1932 the record tells us that one McCall resided in the house now occupied by the appellant-defendants, Kunto. McCall bad a deed that described a 50-foot-wide parcel on the shore of Hood Canal. The error1 that brings this case before us is that the 50 feet described in the deed is not the same 50 feet upon which McCall’s house stood. Rather, the described land is an adjacent 50-foot lot directly west of that upon which the house stood. In other words, McCall’s house stood on one lot and his deed described the adjacent lot.2 Several property owners to the west of defendants, not parties to this action, are similarly situated.

Over the years since 1946, several conveyances occurred, using the same legal description and accompanied by a transfer of possession to the succeeding occupants. The Kuntos’ immediate predecessors in interest, Millers, desired to build a dock. To this end, they had a survey performed which indicated that the deed description and the physical occupation were in conformity. Several boundary stakes were placed as a result of this survey and the dock was constructed, as well as other improvements. The house as *395well as the others in the area continued to be used as summer recreational retreats.

The Kuntos then took possession of the disputed property under a deed from the Millers in 1959. In 1960 the respondent-plaintiffs, Howard, who held land east of that of the Kuntos, determined to convey an undivided one-half interest in their land to the Yearlys. To this end, they undertook to have a survey of the entire area made. After expending considerable effort, the surveyor retained by the Howards discovered that according to the government survey, the deed descriptions and the land occupancy of the parties did not coincide. Between the Howards and the Kuntos lay the Moyers’ property. When the Howards’ survey was completed, they discovered that they were the record owners of the land occupied by the Moyers and that the Moyers held record title to the land occupied by the Kuntos. Howard approached Moyer and in return for a conveyance of the land upon which the Moyers’ house stood, Moyer conveyed to the Howards record title to the land upon which the Kunto house stood. Until plaintiffs Howard obtained the conveyance from Moyer in April, 1960, neither Moyer nor any of his predecessors ever asserted any right to ownership of the property actually being possessed by Kunto and his predecessors. This action was then instituted to quiet title in the Howards and Yearlys. The Kuntos appeal from a trial court decision granting this remedy.

At the time this action was commenced on August 19, I960,3 defendants had been in occupance of the disputed property less than a year. The trial court’s reason for denying their claim of adverse possession is succinctly stated in its memorandum opinion: “In this instance, defendants *396have failed to prove, by a preponderance of the evidence, a continuity of possession or estate to permit tacking of the adverse possession of defendants to the possession of their predecessors.”

Finding of fact 64, which is challenged by defendants, incorporates the above concept and additionally finds defendant’s possession not to have been “continuous” because it involved only “summer occupancy.”

Two issues are presented by this appeal:

(1) Is a claim of adverse possession defeated because the physical use of the premises is restricted to summer occupancy?

(2) May a person who receives record title to tract A under the mistaken belief that he has title to tract B (immediately contiguous to tract A) and who subsequently occupies tract B, for the purpose of establishing title to tract B by adverse possession, use the periods of possession of tract B by his immediate predecessors who also had record title to tract A?

In approaching both of these questions, we point out that the evidence, largely undisputed in any material sense, es*397tablished that defendant or his immediate predecessors did occupy the premises, which we have called tract B, as though it was their own for far more than the 10 years as prescribed in RCW 4.16.020.5

We also point out that finding of fact 6 is not challenged for its factual determinations but for the conclusions contained therein to the effect that the continuity of possession may not be established by summer occupancy, and that a predecessor’s possession may not be tacked because a legal “claim of right” did not exist under the circumstances.

We start with the oft-quoted rule that:

[T]o constitute adverse possession, there must be actual possession which is uninterrupted, open and notorious, hostile and exclusive, and under a claim of right made in good faith for the statutory period.

(Italics ours.) Butler v. Anderson, 71 Wn.2d 60, 64, 426 P.2d 467 (1967). Also see Fadden v. Purvis, 77 W.D.2d 22, 459 P.2d 385 (1969) and cases cited therein.

We reject the conclusion that summer occupancy only of a summer beach home destroys the continuity of possession required by the statute. It has become firmly established that the requisite possession requires such possession and dominion “as ordinarily marks the conduct of owners in general, in holding, managing, and caring for property of like nature and condition.” Whalen v. Smith, 183 Iowa 949, 953, 167 N.W. 646 (1918). Also see Mesher v. Connolly, 63 Wn.2d 552, 388 P.2d 144 (1964); Skoog v. Seymour, 29 Wn.2d 355, 187 P.2d 304 (1947); Butler v. Anderson, supra; Fadden v. Purvis, supra.

We hold that occupancy of tract B during the summer *398months for more than the 10-year period by defendant and his predecessors, together with the continued existence of the improvements on the land and beach area, constituted “uninterrupted” possession within this rule. To hold otherwise is to completely ignore the nature and condition of the property. See Fadden v. Purvis, supra.

We find such rule fully consonant with the legal writers on the subject. In F. Clark, Law of Surveying and Boundaries, § 561 (3d ed. 1959) at 565: “Continuity of possession may be established although the land is used regularly for only a certain period each year.” Further, at page 566:

This rule [which permits tacking] is one of substance and not of absolute mathematical continuity, provided there is no break so as to sever two possessions. It is not necessary that the occupant should be actually upon the premises continually. If the land is occupied during the period of time during the year it is capable of use, there is sufficient continuity.

We now reach the question of tacking. The precise issue before us is novel in that none of the property occupied by defendant or his predecessors coincided with the property described in their deeds, but was contiguous.

In the typical case, which has been subject to much litigation, the party seeking to establish title by adverse possession claims more land than that described in the deed. In such cases it is clear that tacking is permitted.

In Buchanan v. Cassell, 53 Wn.2d 611, 614, 335 P.2d 600 (1959) the Supreme Court stated:

This state follows the rule that a purchaser may tack the adverse use of its predecessor in interest to that of his own where the land was intended to be included in the deed between them, but was mistakenly omitted from the description.

El Cerrito, Inc. v. Ryndak, 60 Wn.2d 847, 376 P.2d 528 (1962).

The general statement which appears in many of the cases is that tacking of adverse possession is permitted if the successive occupants are in “privity.” See Faubion v. Elder, 49 Wn.2d 300, 301 P.2d 153 (1956). The deed running *399between the parties purporting to transfer the land possessed traditionally furnishes the privity of estate which connects the possession of the successive occupants. Plaintiff contends, and the trial court ruled, that where the deed does not describe any of the land which was occupied, the actual transfer of possession is insufficient to establish privity.

To assess the cogency of this argument and ruling, we must turn to the historical reasons for requiring privity as a necessary prerequisite to tacking the possession of several occupants. Very few, if any, of the reasons appear in the cases, nor do the cases analyze the relationships that must exist between successive possessors for tacking to be allowed. See W. Stoebuck, The Law of Adverse Possession In Washington in 35 Wash. L. Rev. 53 (1960).

The requirement of privity had its roots in the notion that a succession of trespasses, even though there was no appreciable interval between them, should not, in equity, be allowed to defeat the record title. The “claim of right,” “color of title” requirement of the statutes and cases was probably derived from the early American belief that the squatter should not be able to profit by his trespass.6

However, it appears to this court that there is a substantial difference between the squatter or trespasser and the property purchaser, who along with several of his neighbors, as a result of an inaccurate survey or subdivision,7 occupies and improves property exactly 50 feet to the east of that which a survey some 30 years later demonstrates that they in fact own. It seems to us that there is also a strong public policy favoring early certainty as to the location of land ownership which enters into a proper interpretation of privity.

On the irregular perimeters of Puget Sound exact deter*400mination of land locations and boundaries is difficult and expensive. This difficulty is convincingly demonstrated in this case by the problems plaintiff’s engineer encountered in attempting to locate the corners. It cannot be expected that every purchaser will or should engage a surveyor to ascertain that the beach home he is purchasing lies within the boundaries described in his deed. Such a practice is neither reasonable nor customary. Of course, 50-foot errors in descriptions are devastating where a group of adjacent owners each hold 50 feet of waterfront property.

The technical requirement of “privity” should not, we think, be used to upset the long periods of occupancy of those who in good faith received an erroneous deed description. Their “claim of right” is no less persuasive than the purchaser who believes he is purchasing more land than his deed described.

In the final analysis, however, we believe the requirement of “privity” is no more than judicial recognition of the need for some reasonable connection between successive occupants of real property so as to raise their claim of right above the status of the wrongdoer or the trespasser. We think such reasonable connection exists in this case.

Where, as here, several successive purchasers received record title to tract A under the mistaken belief that they were acquiring tract B, immediately contiguous thereto, and where possession of tract B is transferred and occupied in a continuous manner for more than 10 years by successive occupants, we hold there is sufficient privity of estate to permit tacking and thus establish adverse possession as a matter of law.

We see no reason in law or in equity for differentiating this case from Faubion v. Elder, 49 Wn.2d 300, 301 P.2d 153 (1956) where the appellants were claiming more land than their deed described and where successive periods of occupation were allowed to be united to each other to make up the time of adverse holding. To the same effect see Naher v. Farmer, 60 Wash. 600, 111 P. 768 (1910), and cases cited therein; Buchanan v. Cassell, 53 Wn.2d 611, 335 P.2d 600 *401(1959) and cases cited therein; El Cerrito, Inc. v. Ryndak, 60 Wn.2d 847, 376 P.2d 528 (1962); See 17 A.L.R.2d 1128 (1951). This application of the privity requirement should particularly pertain where the holder of record title to tract B acquired the same with knowledge of the discrepancy.

Judgment is reversed with directions to dismiss plaintiffs’ action and to enter a decree quieting defendants’ title to the disputed tract of land in accordance with the prayer of their cross complaint.

Armstrong, C. J., and Petrie, J., concur.

Petition for rehearing denied November 2, 1970.

Review denied by Supreme Court November 25, 1970.

The opinion of the court was delivered by

Haneman, J.

Plaintiffs filed a complaint in the Chancery Division seeking a mandatory and prohibitory injunction against an alleged trespass upon their lands. Defendant counterclaimed for a declaratory judgment which would adjudicate that she had gained title to the disputed premises by adverse possession under N. J. S. 2A:14-6 which provides:

“Every person having any right or title of entry into real estate shall make such entry -within 20 years next after the accrual of such right or title of entry, or be barred therefrom thereafter.”

After plenary trial, judgment was entered for plaintiffs. Mannillo v. Gorski, 100 N. J. Super. 140 (Ch. Div. 1968). Defendant appealed to the Appellate Division. Before argument there, this Court granted defendant’s motion for certification. R. R. 1:10-1A.

The facts are as follows: In 1946, defendant and her husband entered into possession of premises in BLeansburg known as Lot Ho. 1007 in Block 42, under an agreement to purchase. Upon compliance with the terms of said agreement, the seller conveyed said lands to them on April 16, 1952. Defendant’s husband thereafter died. The property consisted of a rectangular lot with a frontage of 25 feet and a depth of 100 feet. Plaintiffs are the owners of the adjacent Lot 1008 in Block 42 of like dimensions, to which they acquired title in 1953.

In the summer of 1946 Chester Gorski, one of the defendant’s sons, made certain additions and changes to the defendant’s house. He extended two rooms at the rear of the structure, enclosed a screened porch on the front, and put a concrete platform with steps on the west side thereof for use in connection with a side door. These steps were built to replace existing wooden steps. In addition, a concrete walk *382was installed from the steps to the end of the house. • In 1953, defendant raised the house. In order to compensate for the resulting added height from the ground, she modified the design of the steps by extending them toward both the front and the rear of the property. She did not change their width.

Defendant admits that the steps and concrete walk encroach upon plaintiffs’ lands to the extent of 15 inches. She contends, however, that she has title to said land by adverse possession. N. J. S. A. 2A :14-6, quoted above. Plaintiffs assert contra-wise that defendant did not obtain title by adverse possession as her possession was not of the requisite hostile nature. They argue that to establish title by adverse possession, the entry into and continuance of possession must be accompanied by an intention to invade the rights of another in the lands, i. e., a knowing wrongful taking. They assert that, as defendant’s encroachment was not accompanied by an intention to invade plaintiffs’ rights in the land, but rather by the mistaken belief that she owned the land, and that therefore an essential requisite to establish title by adverse possession, i. e., an intentional tortious taking, is lacking.

The trial court concluded that defendant had clearly and convincingly proved that her possession of the 15-inch encroachment had existed for more than 20 years before the institution of this suit and that such possession was “exclusive, continuous, uninterrupted, visible, notorious and against the right and interest of the true owner.” There is ample evidence to sustain this finding except as to its visible and notorious nature, of which more hereafter. However, the judge felt impelled by existing New Jersey case law, holding as argued by plaintiffs above, to deny defendant’s claim and entered judgment for plaintiffs. 100 N. J. Super., at 150. The first issue before this Court is, therefore, whether an entry and continuance of possession under the mistaken belief that the possessor has title to the lands involved, exhibits the requisite hostile possession to sustain the obtaining of title by adverse possession.

*383The first detailed statement and acceptance by our then highest court, of the principle that possession as an element of title by adverse possession cannot be bottomed on mistake, is found in Folkman v. Myers, 93 N. J. Eq. 208 (E. & A. 1921), which embraced and followed that thesis as expressed in Myers v. Folkman, 89 N. J. L. 390 (Sup. Ct. 1916). It is not at all clear that this was the common law of this State prior to the latter case. An earlier opinion, Davok v. Nealon, 58 N. J. L. 21 (Sup. Ct. 1895), held for an adverse possessor who had entered under the mistaken belief that he had title without any discussion of his hostile intent. However, the court in Myers v. Folkman, supra, at p. 393, distinguished Eavoclc from the case then under consideration by referring to the fact that “Charles R. Myers disclaims any intent to claim what did not belong to him and apparently never asserted a right to land outside the bounds of his title * * (Emphasis supplied) The factual distinction between the two cases, according to Myers, is that in the later case there was not only an entry by mistake but also an articulated disclaimer of an intent by the entrant to claim title to lands beyond his actual boundary. FolTcman, although apparently relying on Myers, eliminated the requirement of that decision that there be expressed an affirmative disclaimer, and expanded the doctrine to exclude from the category of hostile possessors those whose entry and continued possession was under a mistaken belief that the lands taken were embraced within the description of the possessor’s deed. In so doing, the former Court of Errors and Appeals aligned this State with that branch of a dichotomy which traces its genesis to Preble v. Main Cent. R. Co., 85 Me. 260, 27 A. 149, 21 L. R. A. 829 (Sup. Jud. Ct. Me. 1893) and has become known as the Maine doctrine. In Prelle, the court said at 27 A. at p. 150:

“There is every presumption that the occupancy is in subordination to the true title, and, if the possession is claimed to be adverse, the act of the wrongdoer must be strictly construed, and the character of the possession clearly shown. Roberts v. Richards, 84 *384Me. 1, 24 A. 425, and authorities cited. ‘The intention of the possessor to claim adversely,” says Mellon, C. J., in Ross v. Gould, supra, [5 Me. 204], ‘is an essential ingredient in disseisin.’ And in Worcester v. Lord, supra [56 Me. 266], the court says: ‘To make a disseisin in fact, there must be an intention on the part of the party assuming-possession to assert title in himself.’ Indeed, the authorities all agree that this intention of the occupant to claim the ownership of land not embraced in his title is a necessary element of adverse possession; and in case of occupancy by mistake beyond a line capable of being ascertained this intention to claim title to the extent of the occupancy must appear to be absolute, and not conditional; otherwise the possession will not be deemed adverse to the true owner. It must be an intention to claim title to all land within a certain boundary on the face of the earth, wlfether it shall eventually be found to be the correct one or not. If, for instance, one in ignorance of his actual boundaries takes and holds possession by mistake up to a certain fence beyond his limits, upon the claim and in the belief that it is the true line, with the intention to claim title, and thus, if necessary, to acquire ‘title by possession’ up to that fence, such possession, having the requisite duration and continuity, will ripen into title. Hitehings v. Morrison, 72 Me. 331, is a pertinent illustration of this principle. See, also, Abbott v. Abbott, 51 Me. 575; Ricker v. Hibbard, 73 Me. 105.

If, on the other hand, a party through ignorance, inadvertence, or mistake occupies up to a given fence beyond his actual boundary, because he believes it to be the true line, but has no intention to claim title to that extent if it should be ascertained that the fence was on his neighbor’s land, an indispensable element of adverse possession is wanting. In such a ease the intent to claim title exists only upon the condition that the fence is on the true line. The intention is not absolute, but provisional, and the possession is not adverse.”

This thesis, it is evident, rewards the possessor who entered with a premeditated and predesigned “hostility” — the intentional wrongdoer and disfavors an honest, mistaken entrant. 3 American Law of Properly (Casner ed. 1952), § 104, pp. 773, 785; Bordwell, “Disseisin and Adverse Possession,” 33 Yale L. J. 1, 154 (1923); Darling, “Adverse Possession in Boundary Cases,” 19 Ore. L. Rev. 117 (1940); Sternberg, “The Element of Hostility in Adverse Possession,” 6 Temp. L. Q. 206 (1932); Annotation, “Adverse possession involving ignorance or mistake as to boundaries — modern views,” 80 A. L. R. 2d 1171 (1961). The other branch of the dichotomy relies upon French v. Pearce, 8 Conn. 439 (Sup. Ct. Conn. 1831). The court said *385in Pearce on the question of the subjective hostility of a possessor, at pp. 442, 445-446:

“Into the recesses of his [the adverse claimant’s] mind, his motives or purposes, his guilt or innocence, no enquiry is made. “ * *

<« * H? ❖ * s’: #

* * The very nature of the act [entry and possession] is an assertion of his own title, and the denial of the title of all others. It matters not that the possessor was mistaken, and had he been better informed, would not have entered on the land.” 8 Conn, at 442, 445-46.

The Maine doctrine has been the subject of much criticism in requiring a knowing wrongful taking. The criticism of the Maine and the justification of the Connecticut branch of the dichotomy is well stated in 6 Powell, Real Property (1969) ¶ 1015, pp. 725-728:

“Do the facts of his possession, and of his conduct as if he were the owner, make immaterial his mistake, or does such a mistake prevent the existence of the prerequisite claim of right. The leading case holding the mistake to be of no importance was French v. Pearce, decided in Connecticut in 1831. * * * This viewpoint has gained increasingly widespread acceptance. The more subjectively oriented view regards the ‘mistake’ as necessarily preventing the existence of the required claim of right. The leading case on this position is Preble v. Maine Central R. R., decided in 1893. This position is still followed in a few states. It has been strongly criticized as unsound historically, inexpedient practically, and as resulting in better treatment for a ruthless wrongdoer than for the honest landowner. * * * On the whole the law is simplified, in the direction of real justice, by a following of the Connecticut leadership on this point.”

Again, 4 Tiffany, Real Property (3d ed. 1939), § 1159, pp. 47A-475, criticizes the employment of mistake as negating hostility as follows:

“* * * Adopting this view, it is only in so far as the courts, which assert the possible materiality of the mistake, recognize a contrary presumption, of an intention on the part of the wrongful possessor not to claim title if he is mistaken as to the boundary, that the assertion of the materiality of mistake as to boundary becomes of substantial importance. That the presumption is properly in favor of *386the adverse or hostile character of the possession rather than against it has been previously argued, but whatever presumption in this regard may be recognized, the introduction of the element of mistake in the discussion of the question of adverse possession is, it is submitted, unnecessary and undesirable. In no case except in that of a mistake as to boundary has the element of mistake been regarded as having any significance, and there is no reason for attributing greater weight thereto when the mistake is as to the proper location of a boundary than when it is a mistake as to the title to all the land wrongfully possessed. And to introduce the element of mistake, and then limit its significance by an inquiry as to the intention which the possessor may have as to his course of action in ease there should be a mistake, an intention which has ordinarily no existence whatsoever, is calculated only to cause confusion without, it is conceived, any compensating advantage.”

Our Appellate Division in Predham v. Holfester, 32 N. J. Super. 419 (App. Div. 1954) although acknowledging that the Maine doctrine had been severely criticized felt obliged because of siare decisis to adhere thereto. See also Rullis v. Jacobi, 79 N. J. Super. 525, 528 (Ch. Div. 1963).

We are in accord with the criticism of the Maine doctrine and favor the Connecticut doctrine for the above quoted reasons. As far as can be seen, overruling the former rule will not result in undermining any of the values which stare decisis is intended to foster. The theory of reliance, a cornerstone of siare decisis, is not here apt, as the problem is which of two mistaken parties is entitled to land. Realistically, the true owner does not rely upon entry of the possessor by mistake as a reason for not seeking to recover possession. Whether or not the entry is caused by mistake or intent, the same result eventuates — the true owner is ousted from possession. In either event his neglect to seek recovery of possession, within the requisite time, is in all probability the result of a lack of knowledge that he is being deprived of possession of lands to which he has title.

Accordingly, we discard the requirement that the entry and continued possession must be accompanied by a knowing intentional hostility and hold that any entry and possession for the required time which is exclusive, continuous, uninterrupted, visible and notorious, even though *387under mistaken claim of title, is sufficient to support a claim of title by adverse possession.

However, this conclusion is not dispositive of the matter sub judice. Of equal importance under the present factual complex, is the question of whether defendant’s acts meet the necessary standard of “open and notorious” possession. It must not be forgotten that the foundation of so-called “title by adverse possession” is the failure of the true owner to commence an action for the recovery of the land involved, within the period designated by the statute of limitations. The justifications for the doctrine are aptly stated in 4 Tiffany, Beal Property (3d ed. 1939) § 1134, p. 406 as follows:

“The desirability oí fixing, by law, a definite period within which claims to land must be asserted has been generally recognized, among the practical considerations in favor of such a policy being the prevention of the making of illegal claims after the evidence necessary to defeat them has been lost, and the interest which the community as a whole has in the security, of title. The moral justification of the policy lies in the consideration that one who has reason to know that land belonging to him is in the possession of another, and neglects, for a considerable period of time, to assert his right thereto, may properly be penalized by his preclusion from thereafter asserting such right. It is, apparently, by reason of the demerit of the true owner, rather than any supposed merit in the person who has acquired wrongful possession of the land, that this possession, if continued for the statutory period, operates to debar the former owner of all right to recover the land.”

See also 5 Thompson, Real Property (1957 Replacement), 497.

In order to afford the true owner the opportunity to learn of the adverse claim and to protect his rights by legal action within the time specified by the statute, the adverse possession must be visible and notorious. In 4 Tiffany, supra (Supp. 1969, at 291), the character of possession for that purpose, is stated to be as follows:

“* * * it must be public and based on physical facts, including known and visible lines and boundaries. Acts of dominion over the *388land must be so open and notorious as to put an ordinarily prudent person on notice that the land is in actual possession of another. Hence, title may never be acquired by mere possession, however long continued, which is surreptitious or secret or which is not such as will give unmistakable notice of the nature of the occupant’s claim.”

See also 5 Thompson, supra, § 2546; 6 Powell, Real Property, ¶ 1013 (1969).

Generally, where possession of the land is clear and unequivocal and to such an extent as to be immediately visible, the owner may be presumed to have knowledge of the adverse occupancy. In Foulke v. Bond, 41 N. J. L. 527, 545 (E. & A. 1879), the court said:

“Notoriety of the adverse claim under which possession is held, is a necessary constituent of title by adverse possession, and therefore the occupation or possession must be of that nature that the real owner is presumed to have hnoivn that there was a possession adverse to his title, under which it was intended to make title against him.” (Emphasis supplied)

However, when the encroachment of an adjoining owner is of a small area and the fact of an intrusion is not clearly and self-evidently apparent to the naked eye but requires an on-site survey for certain disclosure as in urban sections where the division line is only infrequently delineated by any monuments, natural or artificial, such a presumption is fallacious and unjustified. See concurring opinion of Judge (now Justice) Francis in Predham v. Holfester, 32 N. J. Super. 419, 428-429. (App. Div. 1954). The precise location of the dividing line is then ordinarily unknown to either adjacent owner and there is nothing on the land itself to show by visual observation that a hedge, fence, wall or other structure encroaches on the neighboring land to a minor extent. Therefore, to permit a presumption of notice to arise in the case of minor border encroachments not exceeding several feet would fly in the face of reality and require the true owner to be on constant alert for possible small encroachments. The only method of certain determination *389■would be by obtaining a survey each time the adjacent owner undertook any improvement at or near the boundary, and this would place an undue and inequitable burden upon the true owner. Accordingly we hereby hold that no presumption of knowledge arises from a minor encroachment along a common boundary. In such a case, only where the true owner has actual knowledge thereof may it be said that the possession is open and notorious.

It is conceivable that the application of the foregoing rule may in some cases result in undue hardship to the adverse possessor who under an innocent and mistaken belief of title has undertaken an extensive improvement which to some extent encroaches on an adjoining property. In that event the situation falls within the category of those cases of which Riggie v. Skill, 9 N. J. Super. 372 (Ch. Div. 1950), affirmed 7 N. J. 268 (1951) is typical and equity may furnish relief. Then, if the innocent trespasser of a small portion of land adjoining a boundary line cannot without great expense remove or eliminate the encroachment, or such removal or elimination is impractical or could be accomplished only with great hardship, the true owner may be forced to convey the land so occupied upon payment of the fair value thereof without regard to whether the true owner had notice of the encroachment at its inception. Of course, such a result should eventuate only under appropriate circumstances and where no serious damage would be done to the remaining land as, for instance, by rendering the balance of the parcel unusable or no longer capable of being built upon by reason of zoning or other restrictions.

We remand the case for trial of the issues (1) whether the true owner had actual knowledge of the encroachment, (2) if not, whether plaintiffs should be obliged to convey the disputed tract to defendant, and (3) if the answer to the latter question is in the affirmative, what consideration should be paid for the conveyance. The remand, of course, contemplates further discovery and a new pretrial.

Remanded for trial in accordance with the foregoing.

*390For remandment — Chief Justice Weintraub and Justices Jacobs, Erancis, Proctor, Hall and Haneman — 6.

Opposed — Hone.

OPINION

SOSA, Justice.

Plaintiff-appellee Ida Romero, formerly Garcia, filed suit to quiet title against defendants-appellants Mr. and Mrs. Antonio Garcia, who are her former father-in-law and mother-in-law. The suit to quiet title was based upon adverse possession for more than ten years under color of title and payment of taxes. From judgment for the plaintiff, defendants appeal. We affirm the trial court.

On appeal the defendants urge for reversal: (1) the trial court erred by rejecting the applicable law that plaintiff, whose claim to quiet title was based on adverse possession, must recover, if at all, on the strength of her own title and must establish adverse possession by clear and convincing evidence; (2) the deed that plaintiff relied on did not constitute color of title because the description did not furnish means of identifying any ascertainable tract of land, and because it was “void and of no effect” under New Mexico community property law because the mother-in-law failed to sign the deed; (3) the land was not adequately assessed and taxes were not continuously paid as required by statute.

The facts are the following: In 1947 plaintiff Ida Garcia Romero and her deceased husband Octaviano Garcia, son of the defendants, purchased the 13 acres in dispute for $290 from Octaviano’s father, Antonio Garcia. Mrs. Antonio Garcia failed to join in the conveyance. The 13 acres were carved out of 165 acres Antonio Garcia had purchased in 1923. The plaintiff and her deceased husband entered into possession in 1947 and built a home on the land with the help of both defendants. The deed was recorded in May, 1950. Ida and Octaviano lived in their home until 1962, when he died, whereupon she moved to Colorado and subsequently remarried.

The main thrust of the appellants’ argument concerns the deed. Appellants argue that (1) the void deed was inadequate for color of title and (2) the deed’s description was inadequate for adverse possession because it failed to describe a specific piece of property. The first argument is clearly erroneous. A deed is sufficient for the purpose of color of title even though it is void because it lacks the signature of a member of the community. See Turner v. Sanchez, 50 N.M. 15, 168 P.2d 96 (1946); 3 Am.Jur.2d, Adverse Possession § 112 at 197-99 (1962).

We move to the question of whether the deed was insufficient for adverse possession because it failed to describe adequately a parcel of land which can be ascertained on the ground. Since the deed in question was in Spanish, the court and the parties relied on the following English translation of the description:

A piece of land containing 13 acres more or less, within the following description: NE 4 SE 4, S 4 SE y4 NE ,y4, Section 32, NW 4 SW 4, S i/2 SW y4 NW 4, Section 33, Township 32 N. Range 7E N.M.P.M., said 13 acres are bounded as follows: East and South bounded by property of Antonio Garcia; on the North by the National Forest and on the West by property of Alfonso Marquez. The said 13 acres are in the NW corner of the ranch above described.

Not translated but part of the deed to the appellee’s husband are the following words in Spanish: “Con derecho de agua del Sublet del Rio de Los Pinos,” which translated mean “with water rights assigned from the Sublet [creek] of the Los Pinos river.”

The description in the deed specified that the land is bounded on the north by the National Forest and on the west by Alfonso Marquez and on the south and east by the grantor. The deed also specified that there shall be water rights to the land from the Los Pinos River. The Los Pinos *3River is generally to the south of this property and at one point only some twenty feet from the alleged southern boundary. In Richardson v. Duggar, 86 N.M. 494, 497, 525 P.2d 854, 857 (1974) we held' that the deed is not void for want of proper description if, with the deed and with extrinsic evidence on the ground, a surveyor can ascertain the boundaries. Justice Oman quoted the following:

The purpose of a description of the land, which is the subject matter of a deed of conveyance, is to identify such subject matter; and it may be laid down as a broad general principle that a deed will not be declared void for uncertainty in description if it is possible by any reasonable rules of construction to ascertain from the description, aided by extrinsic evidence, which property is intended to be conveyed. It is sufficient if the description in the deed or conveyance furnishes a means of identification of the land or by which the property conveyed can be located. . . . So, if a surveyor with the deed before him can, with the aid of extrinsic evidence if necessary, locate the land and establish its boundaries, the description therein is sufficient. 16 Am.Jur. (Deeds) § 262.

In the case at bar we had testimony from the grantor that the fence line along the entire northern boundary had been there for over fifty years, and the fence line on the western boundary of the property which he conveyed to his son had also been there for more than fifty years. We therefore see that the northwest corner was adequately established as being the intersection of these two fence lines. The surveyor testified that the plaintiff showed him generally where the land was and pointed to the house that was built by the plaintiff and the defendants. The survey- or walked down the western boundary line and found a pipe in position; he established that pipe as the southwest corner. He shot an angle parallel to the northern boundary line and found a pile of rocks which he established as the southeastern corner. He then closed the parallelogram by shooting a line to the northern boundary parallel to the western fence. This parallelogram measured 12.95 acres; the deed granted “13 acres more or less.” Thus, the land is in the shape of a parallelogram and is bounded by the National Forest on the north, by Alfonso Marquez (now lands of Mr. L. C. White) on the west, and on the south and east by the grantor. This parallelogram is also in close proximity to the river from which water could be used in accordance with the assignment of the water rights.

Mrs. Romero consistently identified this land as the property she and her deceased husband had purchased and which she thereafter possessed and from which she sold the hay for several years. Defendant failed to object to this testimony. Defendant Antonio Garcia recognized that his son owned property, and, although he did not explicitly identify the property that he sold to his son, it can be reasonably inferred from his testimony that it was the above described property.

The trial court made the following findings of fact:

15. The land described in the complaint of the plaintiff herein, by virtue of the description of the said deed itself and' the actions and understandings of the parties as to the boundaries of said land, is capable of determination as to the exact location of the boundaries of said land convyed to Plaintiff’s deceased husband.

16. The Northwest corner of the land conveyed is established by the intersection of a fence line extending along the entire northern boundary of said property from east to west, and the point where an existing fence line along the westerly boundary of said property intersected; the Southwest corner of said lands of the Plaintiff was marked by an iron pipe found in place by a surveyor, and the Southeast corner of said property conveyed was marked by a pile of *4rocks, and the Northeast corner of said tract was marked by an existing fence extending from East to West along the entire northerly boundary of said tract of land.

The court feels that when the evidence, with all reasonable inferences deducible therefrom, is viewed in the light most favorable in support of the findings, there was substantial evidence to support these findings of fact and others relevant to this issue. The Supreme Court will not disturb findings, weigh evidence, resolve conflicts or substitute its judgment as to the credibility of witnesses where evidence substantially supports findings of fact and conclusions of law of the trial court. Cooper v. Burrows, 83 N.M. 555, 494 P.2d 968 (1972).

The court in Garcia v. Garcia, 86 N.M. 503, 505, 525 P.2d 863, 865 (1974) stated that “ . . .an indefinite and uncertain description may be clarified by subsequent acts of the parties [citing cases]”, and found that:

The evidence here is clear that subsequent acts of the parties in going upon and generally pointing out the boundaries of the lands to the surveyor, aided by other extrinsic evidence, enabled the surveyor to prepare the plat relied upon by all the parties. In fact, if it were not for the extrinsic evidence by which the surveyor was able to locate the lands, the 1968 deed from Nazario to plaintiffs would fail for lack of means by which to identify any lands.

In the case at bar the subsequent acts of the parties in erecting a house and pointing to the land were sufficient to ascertain the boundaries.

Finally, appellants argue that appellee failed to pay the tax continuously, for appellee had been in arrears several times, ranging from 1[4 to almost 4 years. However, appellee did pay the taxes in each case before a tax deed was issued to the state. Thus, we hold that appellee complied substantially with the continuous payment of taxes requirement of adverse possession under § 23-1-22 N.M.S.A.1953 (Supp.1975).

The judgment of the trial court will be affirmed.

OMAN, C. J. and McMANUS, J., concur.

STEPHENSON, J., dissenting.

MONTOYA, J., not participating.

OPINION

Before MATTHEWS, C.J., and RABINO WITZ, BURKE, COMPTON and MOORE, JJ.

MATTHEWS, Chief Justice.

This appeal involves a dispute over a tract of land measuring approximately seven and one-half acres, overlooking the Nome River (hereinafter the disputed parcel).1 Record title to a tract of land known as mineral survey 1161, which includes the disputed parcel, is held by Nome 2000.

On July 24, 1987, Nome 2000 filed suit to eject Charles and Peggy Fagerstrom from the disputed parcel. The Fagerstroms counterclaimed that through their use of the parcel they had acquired title by adverse possession.

A jury trial ensued and, at the close of the Fagerstroms’ case, Nome 2000 moved for a directed verdict on two grounds. First, it maintained that the Fagerstroms’ evidence of use of the disputed parcel did not meet the requirements of the doctrine of adverse possession. Alternatively, Nome 2000 maintained that the requirements for adverse possession were met only as to the northerly section of thé parcel and, therefore, the Fagerstroms could not have acquired title to the remab-*307der. The trial court denied the motion. After Nome 2000 presented its case, the jury found that the Fagerstroms had adversely possessed the entire parcel. The court then entered judgment in favor of the Fagerstroms.

On appeal, Nome 2000 contests the trial court’s denial of its motion for a directed verdict and the sufficiency of the evidence in support of the jury verdict. It also challenges two evidentiary rulings made by the trial court and the trial court’s award of attorney’s fees to the Fagerstroms.

1. FACTUAL BACKGROUND2

The disputed parcel is located in a rural area known as Osborn. During the warmer seasons, property in Osborn is suitable for homesites and subsistence and recreational activities. During the colder seasons, little or no use is made of Osborn property.

Charles Fagerstrom’s earliest recollection of the disputed parcel is his family’s use of it around 1944 or 1945. At that time, he and his family used an abandoned boy scout cabin present on the parcel as a subsistence base camp during summer months. Around 1947 or 1948, they moved their summer campsite to an area south of the disputed parcel. However, Charles and his family continued to make seasonal use of the disputed parcel for subsistence and recreation.

In 1963, Charles and Peggy Fagerstrom were married and, in 1966, they brought a small quantity of building materials to the north end of the disputed parcel. They intended to build a cabin.

In 1970 or 1971, the Fagerstroms used four cornerposts to stake off a twelve acre, rectangular parcel for purposes of a Native Allotment application.3 The northeast and southeast stakes were located on or very near mineral survey 1161. The northwest and southwest stakes were located well to the west of mineral survey 1161. The overlap constitutes the disputed parcel. The southeast stake disappeared at an unknown time.

Also around 1970, the Fagerstroms built a picnic area on the north end of the disputed parcel. The area included a gravel pit, beachwood blocks as chairs, firewood and a 50-gallon barrel for use as a stove.

About mid-July 1974, the Fagerstroms placed a camper trailer on the north end of the disputed parcel. The trailer was leveled on blocks and remained in place through late September. Thereafter, until 1978, the Fagerstroms parked their camper trailer on the north end of the disputed parcel from early June through September. The camper was equipped with food, bedding, a stove and other household items.

About the same time that the Fager-stroms began parking the trailer on the disputed parcel, they built an outhouse and a fish rack on the north end of the parcel. Both fixtures remained through the time of trial in their original locations.4 The Fag-erstroms also planted some spruce trees, not indigenous to the Osborn area, in 1975-76.

During the summer of 1977, the Fager-stroms built a reindeer shelter on the north end of the disputed parcel. The shelter was about 8x8 feet wide, and tall enough for Charles Fagerstrom to stand in. *308Around the shelter, the Fagerstroms constructed a pen which was 75 feet in diameter and 5 feet high. The shelter and pen housed a reindeer for about six weeks and the pen remained in place until the summer of 1978.

During their testimony, the Fagerstroms estimated that they were personally present on the disputed parcel from 1974 through 1978, “every other weekend or so" and “[a] couple times during the week ... if the weather was good.” When present they used the north end of the parcel as a base camp while using the entire parcel for subsistence and recreational purposes. Their activities included gathering berries, catching and drying fish and picnicking. Their children played on the parcel. The Fagerstroms also kept the property clean, picking up litter left by others.

While so using the disputed parcel, the Fagerstroms walked along various paths which traverse the entire parcel. The paths were present prior to the Fager-stroms’ use of the parcel and, according to Peggy Fagerstrom, were free for use by others in connection with picking berries and fishing. On one occasion, however, Charles Fagerstrom excluded campers from the land. They were burning the Fagerstroms’ firewood.

Nome 2000 placed into evidence the deposition testimony of Dr. Steven McNabb, an expert in anthropology, who stated that the Fagerstroms’ use of the disputed parcel was consistent with the traditional Native Alaskan system of land use. According to McNabb, unlike the non-Native system, the traditional Native system does not recognize exclusive ownership of land. Instead, customary use of land, such as the Fager-stroms’ use of the disputed parcel, establishes only a first priority claim to the land’s resources. The claim is not exclusive and is not a matter of ownership, but is more in the nature of a stewardship. That is, other members of the claimant’s social group may share in the resources of the land without obtaining permission, so long as the resources are not abused or destroyed. McNabb explained that Charles’ exclusion of the campers from the land was a response to the campers’ use of the Fagerstroms’ personal property (their firewood), not a response to an invasion of a perceived real property interest.5

Nevertheless, several persons from the community testified that the Fagerstroms’ use of the property from 1974 through 1977 was consistent with that of an owner of the property. For example, one Nome resident testified that since 1974 “[the Fag-erstroms] cared for [the disputed parcel] as if they owned it. They made improvements on it as if they owned it. It was my belief that they did own it.”

During the summer of 1978, the Fager-stroms put a cabin on the north end of the disputed parcel. Nome 2000 admits that from the time that the cabin was so placed until the time that Nome 2000 filed this suit, the Fagerstroms adversely possessed the north end of the disputed parcel. Nome 2000 filed its complaint on July 24, 1987.

II. DISCUSSION

A.

The Fagerstroms’ claim of title by adverse possession is governed by AS 09.-10.030, which provides for a ten-year limitations period for actions to recover real property.6 Thus, if the Fagerstroms adversely possessed the disputed parcel, or any portion thereof, for ten consecutive years, then they have acquired title to that property. See Hubbard v. Curtiss, 684 P.2d 842, 849 (Alaska 1984) (“[T]itle automatically vests in the adverse possessor at the end of the statutory period.”). Because the Fagerstroms’ use of the parcel increased over the years, and because Nome *3092000 filed its complaint on July 24, 1987, the relevant period is July 24, 1977 through July 24, 1987.

We recently described the elements of adverse possession as follows: “In order to acquire title by adverse possession, the claimant must prove, by clear and convincing evidence, ... that for the statutory period ‘his use of the land was continuous, open and notorious, exclusive and hostile to the true owner.’ ” Smith v. Krebs, 768 P.2d 124, 125 (Alaska 1989) (citations omitted). The first three conditions — continuity, notoriety and exclusivity — describe the physical requirements of the doctrine. See R. Cunningham, W. Stoebuck and D. Whitman, The Law of Property § 11.7 at 758-60, 762-63 (1984). The fourth condition, hostility, is often imprecisely described as the “intent” requirement. Id. at 761.

On appeal, Nome 2000 argues that as a matter of law the physical requirements are not met absent “significant physical improvements” or “substantial activity” on the land. Thus, according to Nome 2000, only when the Fagerstroms placed a cabin on the disputed parcel in the summer of 1978 did their possession become adverse. For the prior year, so the argument goes, the Fagerstroms’ physical use of the property was insufficient because they did not construct “significant structure[s]” and their use was only seasonal. Nome 2000 also argues that the Fagerstroms’ use of the disputed parcel was not exclusive because “[o]thers were free to pick the berries, use the paths and fish in the area.” We reject these arguments.

Whether a claimant’s physical acts upon the land are sufficiently continuous, notorious and exclusive does not necessarily depend on the existence of significant improvements, substantial activity or absolute exclusivity. Indeed, this area of law is not susceptible to fixed standards because the quality and quantity of acts required for adverse possession depend on the character of the land in question. Thus, the conditions of continuity and exclusivity require only that the land be used for the statutory period as an average owner of similar property would use it. Alaska National Bank v. Linck, 559 P.2d 1049, 1052 (Alaska 1977) (One test for determining continuity of possession is to ask whether the land was used as an average owner would use it.); Peters v. Juneau-Douglas Girl Scout Council, 519 P.2d 826, 831 (Alaska 1974) (“[Possession need not be absolutely exclusive; it need only be a type of possession which would characterize an owner’s use.”). Where, as in the present case, the land is rural, a lesser exercise of dominion and control may be reasonable. See Linck, 559 P.2d at 1052 (citing Cooper v. Carter Oil Co., 7 Utah 2d 9, 316 P.2d 320 (1957) for the proposition that “pasturing of sheep for three weeks a year is sufficient where land is suitable only for grazing”), 1053 (citing Monroe v. Rawlings, 331 Mich. 49, 49 N.W.2d 55, 56 (1951) for the proposition that “6 visits per year to hunting cabin plus some timber cutting found sufficient where land was wild and undeveloped”); Peters, 519 P.2d at 831 (citing Pulcifer v. Bishop, 246 Mich. 579, 225 N.W. 3 (1929) for the proposition that exclusivity is not destroyed as to beach property commonly used by others).

The character of the land in question is also relevant to the notoriety requirement. Use consistent with ownership which gives visible evidence of the claimant’s possession, such that the reasonably diligent owner “could see that a hostile flag was being flown over his property,” is sufficient. Shilts v. Young, 567 P.2d 769, 776 (Alaska 1977). Where physical visibility is established, community repute is also relevant evidence that the true owner was put on notice.7 Id.

Applying the foregoing principles to this case, we hold that the jury could reasonably conclude that the Fagerstroms established, by clear and convincing evidence, continuous, notorious and exclusive possession for ten years prior to the date Nome *3102000 filed suit.8 We point out that we are concerned only with the first year, the summer of 1977 through the summer of 1978, as Nome 2000 admits that the requirements of adverse possession were met from the summer of 1978 through the summer of 1987.

The disputed parcel is located in a rural area suitable as a seasonal homesite for subsistence and recreational activities. This is exactly how the Fagerstroms used it during the year in question. On the premises throughout the entire year were an outhouse, a fish rack, a large reindeer pen (which, for six weeks, housed a reindeer), a picnic area, a small quantity of building materials and some trees not indigenous to the area. During the warmer season, for about 13 weeks, the Fager-stroms also placed a camper trailer on blocks on the disputed parcel. The Fager-stroms and their children visited the property several times during the warmer season to fish, gather berries, clean the premises, and play. In total, their conduct and improvements went well beyond “mere casual and occasional trespasses" and instead “evince[d] a purpose to exercise exclusive dominion over the property.” See Peters, 519 P.2d at 830. That others were free to pick berries and fish is consistent with the conduct of a hospitable landowner, and undermines neither the continuity nor exclusivity of their possession. See id. at 831 (claimant “merely acting as any other hospitable landowner might” in allowing strangers to come on land to dig clams).

With respect to the notoriety requirement, a quick investigation of the premises, especially during the season which it was best suited for use, would have been sufficient to place a reasonably diligent landowner on notice that someone may have been exercising dominion and control over at least the northern portion of the property. Upon such notice, further inquiry would indicate that members of the community regarded the Fagerstroms as the owners. Continuous, exclusive, and notorious possession were thus established.

Nome 2000 also argues that the Fagerstroms did not establish hostility. It claims that “the Fagerstroms were required to prove that they intended to claim the property as their own.” According to Nome 2000, this intent was lacking as the Fagerstroms thought of themselves not as owners but as stewards pursuant to the traditional system of Native Alaskan land usage. We reject this argument and hold that all of the elements of adverse possession were met.

What the Fagerstroms believed or intended has nothing to do with the question whether their possession was hostile. See Peters, 519 P.2d at 832 (with respect to the requirement of hostility, the possessor’s “beliefs as to the true legal ownership of the land, his good faith or bad faith in entering into possession ... are all irrelevant.”); The Law of Property at 761 (citing, inter alia, Peters for the view “of most decisions and of nearly all scholars, that what the possessor believes or intends should have nothing to do with [hostility]”). Hostility is instead determined by application of an objective test which simply asks whether the possessor “acted toward the land as if he owned it,” without the permission of one with legal authority to give possession. Hubbard, 684 P.2d at 848 (citing Peters, 519 P.2d at 832). As indicated, the Fagerstroms’ actions toward the property were consistent with ownership of it, and Nome 2000 offers no proof that the Fagerstroms so acted with anyone’s permission. That the Fagerstroms’ objective manifestations of ownership may have been accompanied by what was described as a traditional Native Alaskan mind-set is irrelevant. To hold otherwise would be inconsistent with precedent and patently unfair.

Having concluded that the Fager-stroms established the elements of adverse possession, we turn to the question wheth*311er they were entitled to the entire disputed parcel. Specifically, the question presented is whether the jury could reasonably conclude that the Fagerstroms adversely possessed the southerly portion of the disputed parcel.9

Absent color of title,10 only property actually possessed may be acquired by adverse possession. Bentley Family Trust v. Lynx Enterprises, Inc., 658 P.2d 761, 768 (Alaska 1983) and Linck, 559 P.2d at 1052-53 n. 8. See also Krebs, 768 P.2d at 126 and n. 7 (recognizing the possibility that the requirements of adverse possession may be met only as to a portion of a disputed parcel). Here, from the summer of 1977 through the summer of 1978, the Fagerstroms’ only activity on the southerly portion of the land' included use of the pre-existing trails in connection with subsistence and recreational activities, and picking up litter. They claim that these activities, together with their placement of the cornerposts, constituted actual possession of the southerly portion of the parcel. Nome 2000 argues that this activity did not constitute actual possession and, at most, entitled the Fagerstroms to an easement by prescription across the southerly portion of the disputed parcel.

Nome 2000 is correct. The Fagerstroms’ use of the trails and picking up of litter, although perhaps indicative of adverse use, would not provide the reasonably diligent owner with visible evidence of another’s exercise of dominion and control. To this, the cornerposts add virtually nothing. Two of the four posts are located well to the west of the disputed parcel. Of the two that were allegedly placed on the parcel in 1970, the one located on the southerly portion of the parcel disappeared at an unknown time. The Fagerstroms maintain that because the disappearing stake was securely in place in 1970, we should infer that it remained for a “significant period.” Even if we draw this inference, we fail to see how two posts on a rectangular parcel of property can, as the Fagerstroms put it, constitute “[t]he objective act of taking physical possession” of the parcel. The two posts simply do not serve to mark off the boundaries of the disputed parcel and, therefore, do not evince an exercise of dominion and control over the entire parcel. Thus, we conclude that the superior court erred in its denial of Nome 2000’s motion for a directed verdict as to the southerly portion. This case is remanded to the trial court, with instructions to determine the extent of the Fagerstroms’ acquisition in a manner consistent with this opinion.

B.

At trial, certain records from the United States Department of the Interior, Bureau of Land Management (BLM), were admitted into evidence over Nome 2000’s hearsay objection. On appeal, Nome 2000 claims that admission of the records was prejudicial error because “[ojther than the Fagerstroms’ own self-serving testimony, the BLM file contained the only evidence that the Fagerstroms had placed two stakes on [the disputed parcel].... in 1970....”

Our reversal of the award of title to the southerly portion of the disputed parcel renders moot Nome 2000’s allegation that the BLM records may have improperly influenced the jury’s finding of a stake on that portion of the parcel. Insofar as we affirm the award of title to the northerly section, we believe that any improper evidence as to the existence of a post on that section of the land was not prejudicial; disregarding the post, the evidence amply supports a finding of adverse possession of the northerly section of the parcel. See Fairbanks North Star Borough v. Tundra Tours, Inc., 719 P.2d 1020, 1035 (Alaska 1986) (erroneous admission of *312cumulative evidence is not prejudicial); Alaska Civ.R. 61.

Nome 2000 also challenges the trial court’s decision to exclude a photograph of the disputed parcel sought to be introduced into evidence by Nome 2000. The trial court ruled that Nome 2000 had improperly withheld the photograph prior to trial in light of the Fagerstroms’ discovery requests. On appeal, Nome 2000 argues that the photograph was “essential” to its case because it showed that some of the paths on the disputed parcel were nearly invisible and, therefore, tended to rebut the Fagerstroms’ assertion of notorious possession.

Based on our review of the record, we conclude that the photograph was not at all essential to Nome 2000’s case, and that if an error was committed by exclusion it was harmless. In fact, before the trial court, Nome 2000’s attorney argued that the photograph was largely cumulative, and therefore the Fagerstroms were not prejudiced by Nome 2000’s non-production:

I don’t think there’s any prejudice from the non-production_ [T]he photograph ... is consistent with the aerial photographs. What I intend to ask Mr. Fagerstrom is, if this [photograph] doesn’t confirm what he said about the trails near the rock being nearly invisible. And it gives a photographic representation to what he’s already testified to .... And I think it's the only photograph that shows the privy, for example. I would think [the Fagerstroms would] like that.

(Emphasis added.) See Sloan v. Atlantic Richfield Co., 541 P.2d 717, 722 n. 7 (Alaska 1975) (erroneous exclusion of cumulative evidence is not prejudicial); Alaska Civ.R. 61.

c.

Pursuant to Civil Rule 82, the trial court awarded the Fagerstroms $7,750.00 as partial compensation for actual attorney’s fees incurred. Nome 2000 argues that an award of attorney’s fees to an adverse possessor amounts to a “windfall,” and should not be given because the record owner is defending an “important” right, namely, its legal title to the disputed parcel. In support of this position, Nome 2000 relies on Sjong v. State, Dep’t of Revenue, 622 P.2d 967 (Alaska 1981).

In Sjong we stated that an award of attorney’s fees may be inappropriate where the losing party was defending an important right; e.g., where a teacher who, in defense of his professional reputation, unsuccessfully appeals to the superior court a school board’s decision to dismiss him. Id. at 978-979 (explaining Crisp v. Kenai Peninsula Borough School District, 587 P.2d 1168 (Alaska 1978)).11 However, in Rosen v. State Board of Public Accountancy, 689 P.2d 478, 482 (Alaska 1984), we stated that the importance of the right is only one factor bearing upon the sound discretion of the trial judge when deciding whether to award attorney’s fees in any given case. We rejected the dispositive significance given the importance-of-the-right criteria by Crisp and Sjong, reasoning that “[t]he importance of the right asserted is frequently very subjective, and it does not lend itself to quantification in absolute terms.” Id.12

Here, the trial judge specifically considered Nome 2000’s argument based on Sjong, as well as the duration, complexity and costs of trial court proceedings, and did “not find cause to exercise the court’s discretion in not awarding any attorney’s fees to the prevailing parties.” We do not believe that this determination constituted an abuse of discretion. This is not a situation, to use the language of S.O. v. W.S., “in which the ‘equities of the situation’ ... make an award of substantial attorney’s *313fees manifestly unreasonable.” 643 P.2d at 1007 (quoting Cooper v. Carlson, 511 P.2d 1305, 1311 (Alaska 1973)). The Fager-stroms spent many years perfecting title to a substantial portion of the disputed parcel. It appears that they have come to rely on their use of the parcel. The Fagerstroms’ recovery of attorney’s fees is therefore no more a “windfall” than would be the case had Nome 2000 prevailed and obtained an attorney’s fees award.

Nonetheless, in view of our decision on the merits of this case, we are vacating the award of attorney’s fees. On remand, after the trial court decides the boundaries of the Fagerstroms’ property, the court should decide which party is the prevailing party and make an award accordingly. Civ.R. 82.

Affirmed in part, reversed in part, and remanded.

*314APPENDIX

—Order, Supreme Court, New York County (Elliott Wilk, J.), entered November 13, 1995, which granted petitioners — plaintiffs’ motion for a preliminary injunction to the extent of enjoining respondents-defendants from using self-help means to remove them from the buildings during the pendency of this action, reversed, on the law, the facts, and in the exercise of discretion, without costs, the motion denied and the preliminary injunction is vacated.

The petitioners are occupants of 537, 539, 541, and 545 East 13th Street, who brought this suit to prevent the City from removing them from these buildings to implement a Federally subsidized plan to rehabilitate the buildings and create low-income housing units. A detailed recitation of the facts and procedural history of this action can be found in East 13th St. Homesteaders’ Coalition v Wright (217 AD2d 31). The narrow issue presently on appeal is whether the petitioners should be granted a preliminary injunction barring their eviction pending trial on the issue of whether legal title to the property passed to them through adverse possession.

A preliminary injunction is warranted only upon a showing *623of (1) a likelihood of success on the merits of the underlying claim; (2) irreparable injury absent granting the injunction; and (3) that a balancing of the equities weighs in favor of the injunction (Aetna Ins. Co. v Capasso, 75 NY2d 860, 862; Grant Co. v Srogi, 52 NY2d 496). Because it is a drastic remedy, injunctive relief is reserved for those cases presenting a clear legal right thereto (Matter of McGuinn v City of New York, 219 AD2d 489, lv dismissed in part and denied in part 87 NY2d 966).

Considering that the petitioners claim the apartment buildings upon a theory of adverse possession, they must show that they are likely to prove, by clear and convincing evidence (643 Coster St. Realty v Acsun Realty Co., 174 AD2d 473, 474), that for a period of ten years they actually possessed the subject property at issue, and that their possession was open and notorious, exclusive, continuous, hostile, and under claim of right (Spiegel v Ferraro, 73 NY2d 622; Garrett v Holcomb, 215 AD2d 884, 885; accord, City of Tonawanda v Ellicott Cr. Homeowners Assn., 86 AD2d 118, 120, appeal dismissed 58 NY2d 824).

Our review of the record reveals that petitioners are not likely to prove ten years of actual, continuous, open and notorious possession of the subject buildings (between 1984 and 1994, the period here in question). Since petitioners’ claim of right is not supported by a written instrument, they must show actual, not constructive, possession to establish the requisite temporal element (RPAPL 521; Van Valkenburgh v Lutz, 304 NY 95, 98; Birnbaum v Brody, 156 AD2d 408). The record contains documentary and photographic evidence that the City sealed the buildings numerous times during the claimed period, and that the occupants had to break these seals, sometimes with a sledgehammer, to reenter the buildings.

The petitioners argue that there was a chain of possession of coalition members in all of the buildings during the requisite period to support the requirement of continuous ownership, but the record does not reveal that such successive possession was continued by an unbroken chain of privity such that it could be tacked for adverse possession purposes (Garrett v Holcomb, 215 AD2d 884; Pegalis v Anderson, 111 AD2d 796; Belotti v Bickhardt, 228 NY 296, 306). In fact, there is no evidence of privity between successive occupants of the apartments, nor is there evidence of any intended transfers. In addition, some of the apartments were vacant for some period, such that the vacating occupant and the new occupant apparently had no contact at all (see, Berman v Golden, 131 AD2d 416).

*624In sharp distinction, the claimant in Ray v Beacon Hudson Mtn. Corp. (88 NY2d 154), the case relied upon in the dissent, was the same person who had occupied the property there in issue from 1963 through 1988, a period of twenty-five years. Such is not the case here, where we are presented with an oft-interrupted number of unrelated occupants.

Since petitioners have failed to demonstrate ten years of continuous possession of the subject property, a condition precedent to a claim for adverse possession, the likely success of which is evaluated on this motion, and respondents have countered with proof which persuasively weighs against the petitioners’ claims, the order appealed is reversed, and the motion for a preliminary injunction denied.

Concur — Milonas, J. P., Rosenberger, Williams and Mazzarelli, JJ.

Kupferman, J.,

dissents in a memorandum as follows: I would affirm.

In the recent case of Ray v Beacon Hudson Mtn. Corp. (88 NY2d 154, 156), Judge Titone, speaking for a unanimous Court, stated: "In determining whether the common-law requirement of 'continuity of possession’ has been met in an adverse possession claim to an estate in land, a court should consider not only the adverse possessor’s physical presence on the land but also the claimant’s other acts of dominion and control over the premises that would appropriately be undertaken by owners of properties of similar character, condition and location. Thus, we conclude that plaintiffs’ occupancy of the summer cottage in a now-defunct resort town for one month during the summer, coupled with their regular efforts taken to secure and improve the premises and to eject trespassers during their absences for the 10-year statutory period while all neighboring structures collapsed due to vandalism or abandonment, satisfied the element of continuous actual possession.”

This statement is, mutatis mutandis, substantially analogous to our current situation.

Further on in his opinion, Judge Titone states "[P]laintiffs’ installation of utilities and over-all preservation of the cottage, a permanent and substantial structure, in a veritable ghost town, for the duration of the statutory period demonstrates continuous, actual occupation of land by improvement.” (Supra, at 161.)

In the case at bar, there is no doubt that the plaintiffs made improvements and attempted to preserve the buildings involved in an area that could be considered the equivalent of a "ghost town”. Moreover, as in the Ray case, where the occupation was for only one month during the summer, we have *625intermittent occupation by various people who are a part of a cohesive group.

In 1977 and 1978, by in rem proceedings, the City acquired title to the four buildings in question. As the IAS Court found at the hearing it conducted, by the early 1980’s the buildings had become a "neighborhood hazard, housing drug activity, litter and trash”. The City having defaulted on its obligation to maintain order and ensure tranquility, the plaintiffs moved into the vacant buildings.

The City now indicates that it is prepared to gut the buildings and rehabilitate the neighborhood with private funds and Federal tax credits after having failed to do so for many years. This may be a consummation to be wished but not necessarily a firm result. In the interim, the preliminary injunctive relief granted by the IAS Court should be continued, preventing a warrant of eviction, until such time as there can be a definitive conclusion as to the claim that the plaintiffs have adverse possession.

Appeal from an amended order of the Supreme Court, Ontario County (Frederick G. Reed, A.J.), entered November 16, 2009. The amended order, among other things, awarded plaintiffs a portion of defendants’ land.

It is hereby ordered that the amended order so appealed from is unanimously affirmed without costs.

Memorandum: In this action to quiet title by adverse possession, defendants appeal from an amended order entered following a bench trial awarding plaintiffs a portion of land (hereafter, disputed property) previously purchased by defendants Gordon Baker and Esther Baker. According to defendants, plaintiffs failed to meet their burden of establishing by clear and convincing evidence that, inter alia, their possession of the disputed *1289property was open and notorious (see Walling v Przybylo, 7 NY3d 228, 232 [2006]; West Middlebury Baptist Church v Koester, 50 AD3d 1494 [2008]). Defendants contend that, among other reasons, a hedgerow screened or obscured plaintiffs’ possessory actions. We reject that contention. The record establishes that, during the required period of adverse possession, plaintiffs erected a shed, constructed and reconfigured a stone wall, refurbished a swing set, planted and fertilized grass, and regularly mowed the lawn (see West v Tilley, 33 AD2d 228, 230 [1970], lv denied 27 NY2d 481 [1970]; see also Ray v Beacon Hudson Mtn. Corp., 88 NY2d 154, 160 [1996]; Villani v Holton, 50 AD3d 1543 [2008]; Gorman v Hess, 301 AD2d 683 [2003]). We thus conclude that “even a casual inspection by [the record owner] ... of the boundary lines of the property . . . would have revealed [plaintiffs’] occupation and use” of the disputed property (West, 33 AD2d at 230).

Inasmuch as defendants tacitly concede, and the record establishes, that plaintiffs’ possession and use of the disputed property was also actual, exclusive, and continuous for the required period of at least 10 years (see generally Walling, 7 NY3d at 232), a presumption of hostility under a claim of right arose, satisfying the remaining element of a cause of action for adverse possession (see DeRosa v DeRosa, 58 AD3d 794, 796 [2009], lv denied 12 NY3d 710 [2009]; Parsons v Hollingsworth, 259 AD2d 1054 [1999]). We conclude that defendants failed to rebut the presumption (see Merget v Westbury Props., LLC, 65 AD3d 1102, 1104-1105 [2009]; Parsons, 259 AD2d at 1054; see generally Walling, 7 NY3d at 232-233). “[Défendants’] analysis focuses far too much on [plaintiffs’] state of mind, i.e., what they knew or reasonably should have known by virtue of deed descriptions [and] survey maps . . . and far too little on [plaintiffs’] actions” (Birkholz v Wells, 272 AD2d 665, 666 [2000]).

Under the version of the RPAPL in effect on June 13, 2008, when plaintiffs’ summons and complaint were filed, plaintiffs were also required to show that the disputed property was “usually cultivated or improved” (RPAPL 522 [former (1)]), or “protected by a substantial inclosure” (RPAPL 522 [former (2)]). Defendants err in contending that we should apply the current version of the RPAPL rather than that former version. Indeed, it is of no moment that the current version lacks a requirement of usual cultivation or improvement (see RPAPL 522 [1]), and deems permissive and nonadverse certain “de minimus non-structural encroachments including, but not limited to, fences, hedges, shrubbery, plantings, [and] sheds” *1290(RPAPL 543 [1]), as well as “the acts of lawn mowing or similar maintenance” (RPAPL 543 [2]). As we concluded in Franza v Olin (73 AD3d 44, 47 [2010]), “where title has vested by adverse possession, it may not be disturbed retroactively by newly-enacted or amended legislation ....’’ We further noted in Franza that the 2008 amendments “define[d] as ‘permissive and non-adverse’ . actions that, under the prior statutory law and long-standing principles of common law, were sufficient to obtain title by adverse possession” (id.). Thus, applying the former version of the RPAPL, we note that “[t]he type of cultivation or improvement sufficient under the statute will vary with the character, condition, location and potential uses for the property . . . and need only be consistent with the nature of the property so as to indicate exclusive ownership” (City of Tonawanda v Ellicott Cr. Homeowners Assn., 86 AD2d 118, 121-122 [1982], appeal dismissed 58 NY2d 824 [1983]; see Ray, 88 NY2d at 159-160), and here plaintiffs established that they “usually cultivated or improved” the disputed property in accordance with the nature of the property (see Franza, 73 AD3d at 47; West Middlebury Baptist Church, 50 AD3d at 1495; Villani, 50 AD3d at 1543; Gorman, 301 AD2d at 684-685).

As a final matter, we conclude that Supreme Court’s measurement of the dimensions of the disputed property is supported by the record (see generally Matter of City of Syracuse Indus. Dev. Agency [Alterm, Inc.], 20 AD3d 168, 170 [2005]). Present— Centra, J.P., Fahey, Peradotto, Sconiers and Gorski, JJ.

OPINION OF THE COURT

G.B. Smith, J.

This appeal arises from an action to quiet title by adverse possession. Because actual knowledge that another person is the title owner does not, in and of itself, defeat a claim of right by an adverse possessor, we affirm the order of the Appellate Division awarding summary judgment to plaintiffs.

Plaintiffs and defendants are owners of adjoining residential lots, 22 and 23, located in the Town of Queensbury, County of Warren, New York. The disputed portion of the land is on the northern border of lot 23.

In January 1986, plaintiffs, the Wallings, purchased lot 22 on Butternut Hill Drive. In 1989, the Przybylos purchased lot 23. Both lots were unimproved land on which the parties built homes and swimming pools. On lot 22, the plaintiffs also built a small shed. Even though the defendants purchased their land in 1989, they did not construct their residence until 1991 and did not obtain a certificate of occupancy and move in until May 1994.

In May 1987, plaintiffs bulldozed and deposited fill and topsoil on defendants’ northerly side yard, including the disputed parcel, dug a trench and installed PVC pipe for the purpose of carrying water from plaintiffs’ eaves and downspouts to and *231under the disputed parcel, ultimately discharging the water in and over the disputed parcel. Also prior to defendants’ arrival, plaintiffs constructed an underground dog wire fence to enclose their dog and continuously mowed, graded, raked, planted, and watered the grassy area in dispute. Also, on this portion of the land, the plaintiff installed 69 feet of four-inch PVC pipe in such a way that all of the pipe ran underground but finally surfaced within a “swale.” Defendants admit that the lawn was in part cultivated before they moved in. In 1992, plaintiffs dug a hole near the northwesterly corner of the grassy part of the disputed territory and placed in it a post approximately 10 feet long on which they affixed a birdhouse. Since 1992, the post and birdhouse have remained in place.

In 2004, defendants had the land surveyed and discovered that they had title to the disputed portion of the land. Upon learning of this, plaintiffs brought an action to quiet title. On September 16, 2004, the Warren County Court granted plaintiffs’ motion for summary judgment quieting title to the land. The court stated:

“Based on the facts of this case, it is clear that plaintiffs, as adverse users, entered upon the disputed parcel of property in 1986 under the misapprehension that the parcel was part of their land. Although not conceded by the defendants, it appears that each party was mutually mistaken as to the true location of the boundary line. Plaintiffs cultivated the parcel by having various excavation work performed on said property, by having topsoil installed and by establishing and maintaining a lawn on a significant portion of the dispute [d] parcel, a use consistent with the nature and character of the parcel. Surprisingly, defendants do not allege to have ever mowed the disputed parcel of property at any time.”

On December 15, 2004, after a motion to renew, the motion court modified its decision by denying summary judgment to the plaintiffs. Based upon an affidavit by the previous owner of lot 22, and the 1986 survey of plaintiffs’ property, the motion court found that there were triable issues of fact as to whether plaintiffs had actual knowledge of the true owners prior to making improvements on the land. The Appellate Division modified the order of County Court by reversing the denial of summary judgment to the plaintiffs and granting that motion. The Appel*232late Division determined: “In the absence of an overt acknowledgment, our courts have recognized since Humbert v Trinity Church [24 Wend 587 (1840)], that an adverse possessor’s claim of right or ownership will not be defeated by mere knowledge that another holds legal title” (24 AD3d 1, 4 [3d Dept 2005] [citation omitted]).

Adverse possession must be proven by clear and convincing evidence (Ray v Beacon Hudson Mtn. Corp., 88 NY2d 154, 159 [1996]). “Where there has been an actual continued occupation of premises under a claim of title, exclusive of any other right, but not founded upon a written instrument or a judgment or decree, the premises so actually occupied, and no others, are deemed to have been held adversely” (RPAPL 521).

To establish a claim of adverse possession, the following five elements must be proved: Possession must be (1) hostile and under claim of right; (2) actual; (3) open and notorious; (4) exclusive; and (5) continuous for the required period (Belotti v Bickhardt, 228 NY 296, 302 [1920]; see also Van Valkenburgh v Lutz, 304 NY 95, 99 [1952]; Spiegel v Ferraro, 73 NY2d 622, 624 [1989]; Ray v Beacon Hudson Mtn. Corp., 88 NY2d at 159). Here the required period is at least 10 years (see Ray at 159).

Plaintiffs possessed the disputed parcel of land as early as 1986 in an open and notorious manner, hostile to the interests of the title owners and continuously for 20 years, 10 of which occurred after defendants moved into their residence. “The ultimate element in the rise of a title through adverse possession is the acquiescence of the real owner in the exercise of an obvious adverse or hostile ownership through the statutory period” (see Monnot v Murphy, 207 NY 240, 245 [1913]). It was not until April 21, 2004, close to 10 years after moving into the house and almost 15 years after purchasing the property, that defendants sought to assert their rights over the disputed parcel. The failure to assert their rights in a timely manner prevents defendants from prevailing on this appeal.

Defendants argue that there is no claim of right when the adverse possessor has actual knowledge of the true owner at the time of possession. However, longstanding decisional law does not support this position. The adverse possessor must act under claim of right (see Van Valkenburgh). By definition, a claim of right is adverse to the title owner and also in opposition to the rights of the true owner. Conduct will prevail over knowledge, particularly when the true owners have acquiesced in the *233exercise of ownership rights by the adverse possessors (see Monnot v Murphy, supra). The fact that adverse possession will defeat a deed even if the adverse possessor has knowledge of the deed is not new (see Humbert v Rector, Churchwardens & Vestrymen of Trinity Church, 24 Wend 587, 604 [1840] [“Possession by the defendant with a claim of title for twenty years, can no more be answered by averring that he knew he was wrong, than could the bar of two years, in slander, by the known falsehood of the libel for which it is prosecuted”]). The issue is “actual occupation,” not subjective knowledge (see id. [emphasis omitted]).

“Adverse possession, although not a favored method of procuring title, is a recognized one. It is a necessary means of clearing disputed titles and the courts adopt it and enforce it, because, when adverse possession is carefully and fully proven, it is a means of settling disputed titles and this is desirable” (Belotti v Bickhardt, 228 NY at 308; see generally Hindley v Manhattan Ry. Co., 185 NY 335, 355-356 [1906]).

The facts of Van Valkenburgh v Lutz (304 NY at 99-100) are distinguishable. In Van Valkenburgh, defendant admitted that he was aware of the rightful owner at the time that he built his shed on the disputed property (see 304 NY 95, 99 [1952]). Defendants point to this and other language in Van Valkenburgh that may seem inconsistent with our holding here. We do not, however, read Van Valkenburgh as contradicting the principle, well established since the nineteenth century, that an adverse possessor’s actual knowledge of the true owner is not fatal to an adverse possession claim. The Van Valkenburgh court mentioned several bases for its holding, and any perhaps mistaken dictum in that case did not change the law as Humbert, Monnot and other cases previously stated it.

The evidence in this case was sufficient to establish title by adverse possession and to grant summary judgment to plaintiffs.

Accordingly, the order of the Appellate Division should be affirmed, with costs. The certified question should not be answered upon the ground that it is unnecessary.

Chief Judge Kaye and Judges Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur.

Order affirmed, etc.

Gibson, J.

Plaintiff brought an action claiming a prescriptive easement over a portion of defendant’s land. The trial court rejected the claim and, instead, entered judgment for defendant on its counterclaim for ejectment, from which plaintiff appeals. We reverse.

I.

Plaintiff operates a small wholesale and retail animal feed business in Westminster Station, Vermont. Defendant is a neighbor*154ing business which owns the land adjacent to that upon which plaintiff’s buildings stand. At issue is a parcel of land to the north of plaintiff’s principal building (the “mill”), which testimony showed to be a rectangular area measuring approximately 60 x 90 feet, covered with gravel but not otherwise improved. Plaintiff owns that part of the gravel area extending approximately twenty-eight feet to the north of the mill; the remainder belongs to defendant.

The mill has loading areas on both the north and south sides: the north loading dock is used mostly by trucks delivering bag feed and by customers coming to pick up feed, while the southern area is where plaintiff receives shipments of feed in bulk. Testimony showed that vehicles using either loading area would use the gravel lot for turning and backing. Evidence tended to show that the suppliers’ trucks as well as the customers’ smaller vehicles used the gravel lot for this purpose.1

Although defendant bought its land in 1956, it was not until a new survey was made in 1984 that it was conclusively established that the bulk of the gravel area used by plaintiff’s vehicles actually belonged to defendant. Defendant then erected a barrier at approximately the location of the survey line to prevent cars and trucks from using its portion of the gravel area, precipitating plaintiff’s lawsuit for declaration of a prescriptive easement.

The court, after making findings of fact, concluded that plaintiff’s claim of a prescriptive easement failed for two reasons: first, plaintiff failed to prove with sufficient particularity the width and length of the easement; and second, any use of the area in question by plaintiff or its customers was made with the permission of the fee owner. Plaintiff claims that the court erred in these conclusions and in the findings of fact supporting them, and that the record as a whole supports the conclusion that a prescriptive easement exists.

II.

Findings of fact will not be overturned on appeal unless they are clearly erroneous. V.R.C.P. 52(a). The evidence must be viewed in the light most favorable to the prevailing party, and the *155findings will be upheld if supported by reasonable or credible evidence, even if contrary evidence exists. Harlow v. Miller, 147 Vt. 480, 481-82, 520 A.2d 995, 997 (1986). Despite this strict standard, a thorough review of the record leads us to the conclusion that plaintiff is correct in its claims that the court erred in making two findings of fact.

Finding 17 states as follows:

The prescriptive easement claimed by plaintiff is over a portion of defendant’s property . . . just north of the northern boundary of plaintiff’s property for use by its suppliers and customers. The claimed easement is for various vehicles to turn and back up to a dock which has been constructed on the east side of plaintiff’s building for loading and unloading.

While the first sentence of this finding accurately described the easement claimed, the second sentence is clearly erroneous in that the record contains no evidence that a loading dock existed on the mill’s east side. The easement claimed is for use of the disputed area by vehicles gaining access either to the loading dock on the mill’s north end, or to the area at the south end of the building used by bulk suppliers to deliver feed. Since this finding is not supported by any evidence, it is erroneous.

III.

In Finding 18, the court held that although “all types of vehicles have turned and backed up to plaintiff’s building for loading and unloading since the early 1920s,” plaintiff had “failed to prove by the requisite measure of proof as to what portion, if any, of defendant’s land” was used by plaintiff’s vehicles. This finding, which entails both an issue of law (the measure of proof necessary to establish an easement) and an issue of fact, served as the basis for the court’s first conclusion of law denying the claim for a prescriptive easement.

The elements necessary to establish a prescriptive easement and adverse possession are essentially the same under Vermont law: an adverse use or possession which is open, notorious, hostile and continuous for a period of fifteen years, and acquiescence in the use or possession by the person against whom the claim is asserted. Russell v. Pare, 132 Vt. 397, 401, 321 A.2d 77, 81 (1974); *15612 V.S.A. § 501. The difference lies in the interest claimed. The term “prescription” applies to the acquisition of nonfee interests, while “adverse possession” indicates that the interest claimed is in fee. Russell v. Pare, 132 Vt. at 401, 321 A.2d at 81; Barber v. Bailey, 86 Vt. 219, 223, 84 A. 608, 611 (1912).

Adverse' possession may be asserted either under claim of title (where claimant took possession under a deed which is for some reason defective), or under a claim of right which arises from the open, notorious and hostile possession of the land at issue. Where there is color of title, it is relatively simple to ascertain the extent of the possession claimed, since “actual and exclusive occupation of any part of the deeded premises carrie [s] with it constructive possession of the whole . . . .” Montgomery v. Branon, 125 Vt. 362, 365, 216 A.2d 41, 43 (1965). In the absence of color of title, however, and where a lot has no definite boundary marks, adverse possession can only extend as far as claimant has actually occupied and possessed the land in dispute. Langdon v. Templeton, 66 Vt. 173, 179, 28 A. 866, 871 (1893).

Where prescriptive use is claimed, our law requires proof similar to that needed to establish adverse possession under claim of right. In Morse v. Ranno, 32 Vt. 600, 607 (1860), this Court held that where a claim of prescriptive easement for a public highway over private land was made,

the extent of the acquisition, the width of the road, must be determined by the extent of the actual occupation and use. There can be no constructive possession beyond the limits which are defined by the user upon the land, or by other marks or boundaries marking the extent of the claim.

See also Gore v. Blanchard, 96 Vt. 234, 242, 118 A. 888, 894 (1922) (width of highway acquired by user is determined by the extent of the actual use and occupation or by other marks and boundaries indicating the extent of the claim). In both Morse v. Ranno and Gore v. Blanchard, as with claims of adverse possession made without color of title, no constructive possession was held to exist beyond the actual occupancy or use made. The decisions did not, however, set forth any standard by which one must prove the limits of use, other than to refer to “marks and boundaries.”

In Dennis v. French, 135 Vt. 77, 79, 369 A.2d 1386, 1387-88 (1977), a prescriptive right of user of a roadway was found as to *157four uses: “[hjauling of firewood ... by entering said roadway from Route 302,” “[ejntering and leaving the . . . property, by foot and tractor,” “[hjauling hay, stones and brush from the . . . property behind the house by truck or tractor,” and “[t]o gain access to a chicken house maintained behind the house.” This Court held that “[tjhe extent of the presumed right is determined by the user, upon which is founded the presumed grant; the right granted being only co-extensive with the right enjoyed.” Id. at 80, 369 A.2d at 1388 (emphasis in original). As can be seen from the four uses found in Dennis, that Court did not require much specificity in defining the extent of the easements, but instead relied on a general outline of the uses made.

This approach to defining the extent of a prescriptive easement is reflected in the position taken by the drafters of the Restatement of Property, which states that “[tjhe extent of an easement created by prescription is fixed by the use through which it was created.” Restatement of Property § 477 (1944).

No use can be justified under a prescriptive easement unless it can fairly be regarded as within the range of the privileges asserted by the adverse user and acquiesced in by the owner of the servient tenement. Yet, no use can ever be exactly duplicated. If any practically useful easement is ever to arise by prescription, the use permitted under it must vary in some degree from the use by which it was created. Hence, the use under which a prescriptive easement arises determines the general outlines rather than the minute details of the interest.

Id., comment b (emphasis added).

In California, case law requires claimants to show prescriptive easements by “a definite and certain line of travel” for the statutory period. Warsaw v. Chicago Metallic Ceilings, Inc., 35 Cal. 3d 564, 571, 676 P.2d 584, 587, 199 Cal. Rptr. 773, 776 (1984). Despite the apparently restrictive nature of that standard, however, the Warsaw court, on facts almost identical to ours, found that an easement existed for the purpose of trucks turning around and positioning themselves at loading docks attached to plaintiff’s building, stating that “ ‘[s]light deviations from the accustomed route will not defeat an easement, [only] substantial changes which break the continuity of the course of travel ....’” Id. (quoting Matthiessen v. Grand, 92 Cal. App. 504, 510, 268 P. 675, *158679 (1928)); see also Wright v. Horse Creek Ranches, 697 P.2d 384, 388 (Colo. 1985) (adopts test for determining extent as set forth in Restatement § 477); Reynolds v. Soffer, 190 Conn. 184, 190, 459 A.2d 1027, 1031 (1983) (where right of way was “clearly visible,” it met the requirement that an easement be measurable with “reasonable certainty”; remanded to trial court for further findings as to extent); O’Brien v. Hamilton, 15 Mass. App. 960, 962, 446 N.E.2d 730, 732, review denied, 389 Mass. 1102, 448 N.E.2d 767 (1983) (extent must be measured by general pattern formed by adverse use); Preshlock v. Brenner, 234 Va. 407, 410, 362 S.E.2d 696, 698 (1987) (prescriptive easement is measured by the character of the use).

From the case law cited above, it is clear that when a prescriptive easement is claimed, the extent of the user must be proved not with absolute precision, but only as to the general outlines consistent with the pattern of use throughout the prescriptive period. We hold that where a claimant adduces enough evidence to prove those general outlines with reasonable certainty, it has met its burden on that issue.

In this case, the trial court had before it extensive evidence as to the nature and scope of the user claimed. Testimony showed that the gravel area at issue was approximately 60 by 90 feet long, extending from the northern end of the mill approximately to where a railroad call box (attached to what resembles a telephone pole) is located. Surveys were introduced showing the exact northern boundary of plaintiff’s land, falling approximately twenty-eight feet to the north of the mill and, therefore, twenty-eight feet into the gravel area. Photographs were also admitted into evidence clearly showing the gravel area and the northern loading dock. In addition, plaintiff’s president drew a diagram showing the use of the gravel area by trucks and cars, indicating the railroad call box as the north limit.

Under the standard discussed above, we conclude that plaintiff met its burden by establishing the general outlines of the easement with reasonable certainty.

IV.

The second — and in its own view, more important — basis upon which the court denied plaintiff’s claim was its conclusion that any use made by plaintiff was with the fee owner’s permis*159sion. The only finding of fact that might support this conclusion is Finding 25, which, referring to a 1984 discussion between plaintiff’s president (Paul Clough) and defendant’s president (Roland Scott), states that

as a result of [this] discussion Paul Clough took the position that defendant’s predecessor in title gave the plaintiff permission to use the land in dispute. At a later discussion Paul Clough took the position that he was entitled to a prescriptive easement over the property in question.

This finding merely reiterates conflicting testimony, stating that on two separate occasions Paul Clough took two different positions regarding whether plaintiff’s use was by permission. No finding is made as to the ultimate issue of permission, inasmuch as the trial court failed to find that either “position” rose to the level of fact.

Conclusions of law not supported by the findings of fact will not be upheld. Dartmouth Savings Bank v. F.O.S. Associates, 145 Vt. 62, 66, 486 A.2d 623, 625 (1984). As Finding 25, being cast in the alternative, cannot support the conclusion that permission was given, the conclusion itself must fail as a matter of law.

V.

Even were we to find that the conclusion as to permissive use of the easement was supported by Finding 25, the judgment must be reversed.

In Section III above, we reiterated the elements necessary to prove a prescriptive easement: open, notorious, hostile and continuous use over a fifteen-year period in which the fee owner has acquiesced. Russell v. Pare, 132 Vt. at 401, 321 A.2d at 81. In its findings, the trial court found as fact that the area in dispute had been used by vehicles of all descriptions in a manner consistent with the claimed user since the 1920s. The record showed that this use continued uninterrupted, and in a manner substantially unchanged since then but for the modernization of the vehicles using the area, until the barrier was erected in 1984. On the facts as found by the court, this comprises “open, notorious and continuous” use of defendant’s property.

The general rule is that open and notorious use will be presumed to be adverse. Barber v. Bailey, 86 Vt. at 223, 84 A. at 611. *160The trial court noted in its order (without further comment), and the defendant argues, that not this presumption but the presumption that public use of private property is by permission should apply. See Begin v. Barone, 124 Vt. 421, 423, 207 A.2d 252, 254 (1965); Gore v. Blanchard, 96 Vt. at 241, 118 A. at 893. This case does not, however, involve the kind of generalized public use envisioned in Begin or Gore, and both those cases note that the “public use” presumption is an exception to the general rule, to be used only in appropriate circumstances.2 Begin v. Barone, 124 Vt. at 423, 207 A.2d at 254; Gore v. Blanchard, 96 Vt. at 241, 118 A. at 893. A review of the record reveals no contradictory evidence.

In order to prove the final element of its claim, the passing of the fifteen-year period set forth at 12 V.S.A. § 501, plaintiff proved the chain of title of its property from plaintiff’s predecessors in interest from 1929 through the present, and showed through uncontradicted testimony that those predecessors had also made use of the gravel area now claimed by plaintiff as an easement by prescription. Under the doctrine of “tacking,” plaintiff may add those previous periods of use to its own upon a showing that it has “assume[d] the use of the easement directly from his predecessor as a part of his receipt of the dominant estate.” Russell v. Pare, 132 Vt. at 405, 321 A.2d at 83. The record supports the conclusion that adverse use began no later than 1929, with the result that the prescriptive period expired in 1944.3

*161“When the proponent of a prescriptive acquisition produces facts sufficient to support the claim, the burden shifts to the defendants to show such possession or intrusion as would defeat the prescriptive claim.” Id. As discussed in Section IV, above, there was testimony to the effect that Peter Oot, a former president of defendant corporation, gave plaintiff permission to use the land in dispute in the manner now claimed as a prescriptive easement. Even were this testimony to be accepted, as it is within the trial court’s discretion to do, such permission could not have been given earlier than 1956, when defendant purchased the land — twelve years after the fifteen-year prescriptive period had expired. Our law is clear that “ ‘[o]nce [a] grant is established by adverse use, the subsequent granting of permission will not serve to divest or defeat the claim.’ ” Moran v. Byrne, 149 Vt. 353, 355, 543 A.2d 262, 263 (1988) (quoting Zuanich v. Quero, 135 Vt. 322, 325, 376 A.2d 763, 765 (1977)).

The record supports a conclusion that the claimed user was made in an open, notorious, continuous and adverse manner from 1929 until at least 1956.

Reversed and remanded with directions to enter judgment in favor of plaintiff.