O'BANION v. Borba’s Empirical Analysis

Citation profile

70 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 70 citing decisions cite the case generally; a passage count includes only decisions quoting that exact language verbatim.

1. ““. . . In this connection it is pertinent to observe that whether the use of the easement is adverse and under a claim of right, or permissive and with the owner’s consent, and the nature of the user is sufficient to put the owner on notice, are questions of fact. (1 Cal.Jur. 635.) Also, if there is any substantial evidence to support the judgment, it must be affirmed. All conflicts must be resolved in favor of the prevailing party and the evidence viewed in a light most favorable to him. i i “There has been considerable confusion in the cases involving the acquisition of easements by prescription, concerning the presence or absence of a presumption that the use is under a claim of right adverse to the owner of the servient tenement, and of which he has constructive notice, upon the showing of an open, continuous, notorious and peaceable use for the prescriptive period. . . . The preferable view is to treat the ease the same as any other, that is, the issue is ordinarily one of fact, giving consideration to all the circumstances and the inferences that may be drawn therefrom. The use may be such that the trier of fact is justified in inferring an adverse claim and user and imputing constructive knowledge thereof to the owner. There seems to be no apparent reason for discussing the matter from the standpoint of presumptions. For the trial court the question is whether the circumstances proven do or do not justify an inference showing the required elements. In the appellate cou”

   5 later decisions quote this exact passage
   e.g. Van Amersfoort v. Young · Case v. Uridge

2. ““On the claim that the use of the easements was permissive, defendants refer to'conversations with plaintiff O’Banion when the defendants erected the fences in 1945 to the effect that he went to defendants to see if the roads could be opened, and discussed the payment of $85 to defendants to obtain an opening, and to alleged admissions by plaintiff O’Banion in his deposition to the effect that he obtained the permission of Miller and Lux, defendants’ predecessors, to use the easements. “Nothing more than a conflict in the evidence is involved. As to both instances to which reference has been made it must be remembered that there is testimony that no permis sion for the user was sought of anyone at any time. The user was open, notorious and adverse.””

   1 later decision quote this exact passage
   e.g. 213 Cal. App. 2d 300 - Serrano v. Grissom

3. “. . the law is clear that merely because the public also uses the easement does not preclude the acquisition by an individual of a right based upon his own user. His right must be based on his individual use—rest on its own foundation rather than use as a member of the public.””

   1 later decision quote this exact passage
   e.g. 128 Cal. App. 2d 237 - Morse v. Miller