72 So. 2d 549 - Hester v. Smith’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. “"The testimony in the record is not so much significant by reason of the facts established as for the failure to establish the one essential, namely that the 1902 fence was agreed upon, accepted as and intended to represent the boundary between the Hester and Smith estates. Careful and repeated examination of the testimony which may be regarded as bearing upon this point only serves to emphasize this failure. It is quite true that a number of the witnesses consistently referred to the 1902 fence as the boundary; that the widow of W. P. Smith who had lived on the Smith property from 1893 to 1943, a period of fifty years, testified that Smith and Hester built a wire fence about or between 1900 and 1902 between their properties, but we find not the slightest direct and positive evidence that this 1902 fence was intended by Walter S. Hester and W. P. Smith to mark the boundary between their estates. There is some testimony that the immediate purpose of the fence was to keep the cattle separated, but we are not concerned with the assignment of any definite reason nor the finding of any exact purpose, other than the intention of marking a boundary. "In the determination of boundaries we think the intention of the parties is an essential requirement. This principle appears to be well established; Sharpless v. Adkins, La.App., 22 So.2d 692 , certiorari denied; Dufrene v. Bernstein, 190 La. 66 , 181 So. 859 , and cases cited therein. "We must therefore conclude that the first ground f”

   3 later decisions quote this exact passage
   e.g. Beene v. Pardue · Wait v. Pearson

2. “"The mere fact that parties owning adjoining property have cultivated lands up to a certain line, or up to a certain fence, built either by one or by both, or built by one and repaired by the other, does not per se evidence an adverse possession up to the line or fence, or an acquiescence in or recognition of an adverse ownership. Neighbors constantly run up fences within or beyond the boundary lines, and join their fences, doing so with the knowledge and understanding that such acts are merely temporary, and done subsidiarily to, and with reference to, the right of both to ultimately ascertain and fix rights by an action of boundary, or through a formal, legal survey. Until this happens, the lands held by each are in the occupancy, and not in the adverse possession, of either,—certainly so in the absence of a clear and direct claim advanced of adverse ownership and possession. In the absence of such a claim, the other party is justified, inasmuch as matters as to boundary are resting in abeyance, subject to future adjustment through an action of boundary. * * * Plaintiff would have the right to assume that defendant's possession, if such it could be termed, was by sufferance, precarious, and subsidiary to the adjustment of the exact legal rights of the parties, to be ultimately ascertained and fixed by an action of boundary."”

   1 later decision quote this exact passage
   e.g. Beene v. Pardue