Fischer v. Berger’s Empirical Analysis

Citation profile

9 state decisions

Most-quoted passages

The sentences later courts lift from this opinion, ranked by how many decisions quote each — the parts of the opinion doing the work. These counts are smaller than the citation total above because most of the 9 citing decisions cite the case generally; a passage count includes only decisions quoting that exact language verbatim.

1. “A finding of fact is clearly erroneous if there is no evidence to support it, if, on the entire record, a reviewing court is left with a definite and firm conviction a mistake has been made, or if the finding was induced by an erroneous application of the law. Brandt v. Somerville, 2005 ND 35, ¶ 12 , 692 N.W.2d 144 . A choice between two permissible views of the weight of the evidence is not clearly erroneous. Id. On appeal, this Court does not reweigh conflicts in the evidence, and we give due regard to the district court’s opportunity to judge the credibility of the witnesses. Id.”

   2 later decisions quote this exact passage
   e.g. Nelson v. Mattson · Howard v. Trotter

2. “Mere user of land by the public as a highway is insufficient of itself to establish a highway by prescription or long use. The user must be adverse and hostile to the rights of the owners; and mere travel by the public does not of itself constitute adverse use of the property by the public. Regardless of how long it is continued, a user by license or permission of the owner of the land sought to be impressed with the public easement of travel is not adverse and affords no basis for prescription.... Permissive use has reference to the conduct of the landowner in acquiescing and consenting that the road be traveled by the public while adverse user imports an assertion of right on the part of those traveling the road, hostile to that of the owner. The hostile use of a road over privately owned land necessary to establish a prescriptive' right means a use inconsistent with the owner’s right to exclusive use. It does not imply enmity or ill will and is consistent with friendly relations between user of the road and landowner.... It must be conceded that placing obstructions across a road, such as a gate, is a strong indication that the use by others is permissive only, and that erection of a gate or gates across the road tends to evidence an intention on the part of the owner to assume and assert ownership and possession of the land over which the road runs.... To establish a public way by prescription it is necessary for the plaintiff to prove an adverse use of the land which had”

   1 later decision quote this exact passage
   e.g. McKenzie County v. Reichman