McCarvel v. Perhus, 952 N.W.2d 86

Plaintiffs Kevin and Angela McCarvel sued defendants Kelly and Debra Perhus for adverse possession, boundary by acquiescence, and prescriptive easement to a .41-acre disputed parcel; after a bench trial the district court quieted title to the McCarvels and denied defendant fees; Perhuses appealed and the N.D. Supreme Court affirmed.
The disputed parcel lies between the McCarvel property and East River Road (created when East River Road was relocated before 1992); Kelly Perhus is the record owner but the tract is isolated from the rest of his parcel.
The McCarvels and their predecessors used and improved the parcel: built and maintained an earthen dike that crosses the parcel, planted trees, mowed, and maintained a driveway; aerial photos show clear demarcation along the road and dike.
The McCarvels have an unbroken chain of title to their property back to 1992; the relocation of East River Road predates 1992, and the district court relied on tacking to satisfy the 20-year acquiescence period.
No evidence showed the Perhuses ever communicated permission to use the parcel; Kelly claimed an unwritten license but the court found no communicated consent and no claim of ownership communicated to the Perhuses.
The district court declined to award costs or attorney’s fees to the Perhuses (no finding of frivolous claim or pleadings made in bad faith); the Supreme Court held the court did not abuse its discretion.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether boundary by acquiescence established	McCarvels: East River Road is a definite, visible boundary; McCarvels and predecessors possessed up to that line (>20 years) with improvements; tacking applies	Perhuses: Road relocation does not fix boundary; any use was by permission/unwritten license	Affirmed: boundary by acquiescence proven by clear and convincing evidence; mutual recognition inferred from silence; tacking satisfied
Whether adverse possession established	McCarvels: continuous, open, exclusive, adverse possession (dike, trees, mowing, driveway) for statutory period	Perhuses: use was permissive/license; no notice of adverse claim	Affirmed: adverse possession met by clear and convincing evidence; title quieted to McCarvels
Whether defendants entitled to costs/attorney's fees under statutes for frivolous claims or bad-faith pleadings	McCarvels: inclusion of Debra was precautionary; claims not frivolous or made in bad faith	Perhuses: Debra was unnecessarily named; Kelly alleged lis pendens was overbroad—seek fees	Affirmed denial: court did not find claims frivolous nor pleadings untrue/bad faith; no abuse of discretion in denying fees
Whether district court findings were clearly erroneous	McCarvels: trial court credibility and factual findings entitled to deference	Perhuses: challenged factual findings	Affirmed: applied clearly erroneous standard; sufficient evidence supports findings

Larson v. Tonneson, 933 N.W.2d 84 (N.D. 2019) (bench-trial findings of fact reviewed for clear error; trial court resolves credibility).
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) (definition and requirements for boundary by acquiescence).
James v. Griffin, 626 N.W.2d 704 (N.D. 2001) (tacking doctrine for successive adverse occupants).
Sagebrush Resources, LLC v. Peterson, 841 N.W.2d 705 (N.D. 2014) (attorney-fee awards generally disfavored; frivolous-claim standard).
Deacon's Dev., LLP v. Lamb, 719 N.W.2d 379 (N.D. 2006) (definition of frivolous claims under fee-shifting statute).
Strand v. Cass Cty., 753 N.W.2d 872 (N.D. 2008) (award of expenses for pleadings not made in good faith requires specific findings).
Dixon v. McKenzie Cty. Grazing Ass'n, 675 N.W.2d 414 (N.D. 2004) (abuse-of-discretion standard for awarding fees and expenses).