952 N.W.2d 86
N.D.2020Background
- Disputed .41-acre parcel between Kevin & Angela McCarvel and Kelly & Debra Perhus created when East River Road was relocated before 1992; parcel lies between McCarvel land and East River Road.
- McCarvels (purchasers in 2003; chain to 1992) and predecessors maintained the parcel: built/maintained an earthen dike, planted trees, mowed, and used a driveway.
- Perhuses retained record title; Kelly testified he knew the road moved but denied that the road marked the boundary and claimed an unwritten license was given (court found no evidence of permission).
- McCarvels sued asserting adverse possession, boundary by acquiescence, and easement by prescription; sought quiet title, injunction, and damages; bench trial followed.
- District court found McCarvels proved adverse possession by clear and convincing evidence and met elements of boundary by acquiescence (including tacking over predecessors); denied Perhuses’ requests for costs and attorney’s fees.
Issues
| Issue | Plaintiff's Argument (McCarvel) | Defendant's Argument (Perhus) | Held |
|---|---|---|---|
| Boundary by acquiescence (20-year rule) | East River Road functioned as a visible, mutually recognized boundary; McCarvels and predecessors possessed up to that line for 20+ years (tacking). | Perhus contended the road was not the boundary and no mutual recognition existed. | Court: Found acquiescence satisfied (road visible, silence inferred mutual recognition, possession by McCarvels and predecessors, tacking met 20 years). |
| Adverse possession | Continuous, open, exclusive possession (dike, trees, driveway, maintenance) established hostile claim by clear and convincing evidence. | Perhus argued title stayed with record owner and that use was by license/permission. | Court: Adverse possession proven by clear and convincing evidence; title quieted to McCarvels. |
| Costs/attorney’s fees (frivolous pleadings; lis pendens) | (Perhus) Sought fees: Debra for being unnecessarily named; Kelly argued lis pendens covered too much property warrants fees. | McCarvels argued claims/pleadings were brought in good faith. | Court: Denied fees; no finding of frivolity or pleadings made without reasonable cause; no abuse of discretion. |
Key Cases Cited
- Larson v. Tonneson, 933 N.W.2d 84 (N.D. 2019) (bench-trial findings of fact reviewed for clear error; conclusions of law fully reviewable)
- Sauter v. Miller, 907 N.W.2d 370 (N.D. 2018) (elements and tacking for boundary by acquiescence)
- Brown v. Brodell, 756 N.W.2d 779 (N.D. 2008) (mutual recognition and visibility requirements for acquiesced boundary)
- James v. Griffin, 626 N.W.2d 704 (N.D. 2001) (tacking successive occupants to meet the 20‑year period)
- Sagebrush Resources, LLC v. Peterson, 841 N.W.2d 705 (N.D. 2014) (attorney’s fees generally not awarded absent statute/contract; definition of frivolous claim)
- Strand v. Cass County, 753 N.W.2d 872 (N.D. 2008) (district court discretion to award expenses when pleadings made without reasonable cause and not in good faith)