IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2020 ND 314

Kevin McCarvel and Angela McCarvel, Plaintiffs and Appellees

v.

Kelly Perhus and Debra Perhus, Defendants and Appellants

No. 20200051

Appeal from the District Court of Cass County, East Central Judicial District, 

the Honorable John Charles Irby, Judge.

AFFIRMED.

Opinion of the Court by VandeWalle, Justice.

Asa K. Burck, Fargo, N.D., for plaintiffs and appellees.

Jonathan T. Garaas, Fargo, N.D., for defendants and appellants.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

DECEMBER 17, 2020 

STATE OF NORTH DAKOTA
1

McCarvel v. Perhus

No. 20200051

VandeWalle, Justice.

[¶1] Following a bench trial, Kelly and Debra Perhus appealed from a district 

court judgment quieting title to disputed property in Kevin and Angela 

McCarvel. We affirm.

I

[¶2] Kevin and Angela McCarvel brought claims for adverse possession, 

boundary by acquiescence, and easement by prescription against Kelly and 

Debra Perhus related to a piece of property. The McCarvels also sought 

injunctive relief and monetary damages. After a bench trial, the district court 

found the McCarvels met their claim for adverse possession by clear and 

convincing evidence. The court also found the elements for boundary by 

acquiescence were met. Additionally, Debra Perhus made a claim for attorney’s 

fees and costs, which the court denied.

[¶3] The property at issue (“the disputed parcel”) is located “in the southeast 

quarter of section 33, Township 137 North, Range 50 West, Cass County, North 

Dakota.” Kelly Perhus was the record title owner of the property. The court 

found the disputed parcel is .41 acres in size.

[¶4] The McCarvels own the property adjacent to the disputed parcel and the 

Perhuses’ property. The McCarvels purchased their property in 2003. The 

court traced ownership of the McCarvel property back to 1992. The court found 

the McCarvels have an unbroken chain of title to their property of more than 

twenty years. According to the court, the recorded legal descriptions for both 

the McCarvel property and the Perhus property do not overlap and the 

properties are adjacent. The Sheyenne River makes up the west and northwest 

boundaries of the McCarvel property. Highway 46 borders the McCarvel 

property to the north and northeast. East River Road provides the southern 

boundary. An earthen dike crosses the north and west boundaries of the 

McCarvel property. The dike crosses the disputed parcel. The disputed parcel 

is the only piece of other property abutting the McCarvel property.
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[¶5] The disputed parcel is set off from the rest of the Perhus property due to 

road construction predating 1992. Highway 46 borders the disputed parcel to 

the northeast. East River Road borders the disputed parcel to the southeast. 

Near the disputed parcel, Highway 46 crosses the Sheyenne River. Work on 

the Highway 46 bridge required pushing the entrance of East River Road to 

the east prior to 1992. As a result, East River Road crossed a small section of 

the Perhus property, leaving the .41-acre tract between the McCarvel property 

and East River Road.

[¶6] The Perhus property has been in the Perhus family since 1875. At trial, 

Kelly Perhus testified that he was aware East River Road had moved, but he 

also testified that he believed the present location of the road was not the 

boundary line. Kelly Perhus claimed that the McCarvels and their 

predecessors were allowed to use the disputed parcel through an “unwritten 

license.” The court found no evidence that any permission was communicated 

to use the disputed parcel. Further, no evidence was presented that the 

McCarvels or their predecessors communicated their claim of ownership to the 

Perhuses.

[¶7] The McCarvels did not make their claim to the disputed parcel based on 

a written instrument. The court found the McCarvels “maintained a dike, 

planted trees, mowed the grass and maintained a driveway across the disputed 

property.” The court also stated, “From the aerial photographs submitted as 

evidence, it is clear that the township road and the earthen dike along the 

Highway 46 right-of-way are obvious lines of demarcation of the disputed 

property.” Additionally, the court noted an employee of Kelly Perhus drove a 

farm implement over the disputed parcel causing ruts and the McCarvels 

reported it as a trespass. The court ultimately held the McCarvels met their 

claim for adverse possession by clear and convincing evidence. It also found the 

McCarvels met all the elements for boundary by acquiescence.

[¶8] The district court also addressed Debra Perhus’s claim for fees, costs, 

and attorney’s fees. The McCarvels included Debra Perhus as a defendant in 

this claim. The McCarvels claim Debra Perhus was included out of an 

abundance of caution because they did not know what interest, if any, she had 
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in the property. Debra Perhus was not a record titleholder of the disputed 

parcel. The court also found no evidence that Debra claimed any homestead 

right in the disputed property or any property making up the parcel owned by 

her husband.

II

[¶9] This Court has held,

In an appeal from a bench trial, the district court’s findings 

of fact are reviewed under the clearly erroneous standard of 

review, and its conclusions of law are fully reviewable. A finding of 

fact is clearly erroneous if it is induced by an erroneous view of the 

law, if there is no evidence to support it, or if, after reviewing all 

of the evidence, this Court is convinced a mistake has been made. 

In a bench trial, the district court is the determiner of credibility 

issues and we will not second-guess the district court on its 

credibility determinations. Findings of the trial court are 

presumptively correct.

Larson v. Tonneson, 2019 ND 230, ¶ 10, 933 N.W.2d 84 (internal quotations 

and citations omitted). “Whether there has been mutual recognition of a 

boundary is question of fact, and will be reviewed on appeal under a clearly 

erroneous standard.” Sauter v. Miller, 2018 ND 57, ¶ 10, 907 N.W.2d 370.

III

[¶10] The Perhuses argue the district court’s finding that the McCarvels met 

their claim for boundary by acquiescence was clearly erroneous. Boundary by 

acquiescence “allows a property owner to acquire neighboring property due to 

an honest mistake over the location of the boundary line.” Sauter, 2018 ND 57, 

¶ 10 (quoting Brown v. Brodell, 2008 ND 183, ¶ 9, 756 N.W.2d 779).

[¶11] “To establish a new boundary line by the doctrine of acquiescence, it 

must be shown by clear and convincing evidence that both parties recognized 

the line as a boundary, and not a mere barrier, for at least 20 years prior to the 

litigation.” Sauter, 2018 ND 57, ¶ 10 (quoting Brown, 2008 ND 183, ¶ 9). “A 

boundary line acquiesced in must be definite, certain and not speculative, and 
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open to observation.” Id. “Moreover, acquiescence requires possession up to a 

visible line marked clearly by monuments, fences, or the like.” Id. “In the 

absence of a conventional agreement, mutual recognition may be inferred from 

a party’s conduct or silence.” Id. at ¶ 11 (quoting Brown, at ¶ 9).

[¶12] The required 20-year period can be met by tacking. Sauter, 2018 ND 57, 

¶ 11.

[W]here successive adverse occupants hold in privity with each 

other under the same claim of title, the time limit for maintaining 

an action may be computed by the last occupants from the date the 

cause of action accrued against the first adverse user.

Id. (quoting James v. Griffin, 2001 ND 90, ¶ 11, 626 N.W.2d 704). “When 

tacking is relied upon to meet the 20-year period, it must result in a single 

continuous acquiescent possession.” Id. (quoting James, at ¶ 11). Tacking 

requires a boundary by acquiescence by the current occupants “and/or their 

predecessors in interest.” Id. at ¶ 12.

[¶13] Here, the district court analyzed the evidence presented at trial for the 

McCarvels’ boundary by acquiescence claim. The court recognized East River 

Road as the boundary line in question. East River Road meets the requirement 

of a clearly marked, definite, certain and not speculative, open to observation 

boundary line between the properties.

[¶14] No evidence was presented showing Kelly Perhus communicated 

permission to the McCarvels or their predecessors to use the disputed property. 

As a result, the court found no conventional agreement existed between the 

parties mutually recognizing East River Road as the boundary line. However, 

a court may infer mutual recognition of a boundary line from the silence of the 

parties, as it appears the parties remained silent here. See Sauter, 2018 ND 

57, ¶ 11. The silence of the parties supports finding a mutual recognition of the 

East River Road boundary line.

[¶15] The district court examined the possession of the property by the 

McCarvels and their predecessors up to East River Road. The court explicitly 

found, “The McCarvels and their predecessors in interest made regular use of 
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the disputed property.” The court noted the planting of trees on the property 

as well as the construction of a dike and driveway. This finding supports the 

possession requirement of the doctrine of acquiescence.

[¶16] Evidence introduced at trial also supports a finding that the McCarvels 

and their predecessors met the 20-year time period by tacking. The McCarvels 

had an unbroken chain of title to their property going back to 1992. The 

relocation of East River Road predates 1992. Since that time, the evidence 

indicates the McCarvels and their predecessors possessed the property by 

planting trees and constructing a dike and a driveway.

[¶17] The evidence presented at trial supports the district court’s finding of 

boundary by acquiescence. The evidence indicates the East River Road 

boundary line exists, the parties mutually recognized it as the boundary line 

through their silence, the McCarvels and their predecessors possessed the 

disputed property, and the McCarvels tacked their boundary by acquiescence 

through their predecessors in interest. Therefore, the district court’s finding of 

boundary by acquiescence was not clearly erroneous, as evidence exists to 

support it and the law was correctly applied.

IV

[¶18] Debra Perhus argues she is entitled to costs and attorney’s fees for being 

a named party in this action. Kelly Perhus argues he is entitled to costs and 

attorney’s fees because the McCarvels filed a lis pendens for an area of property 

much larger than the disputed parcel. “Under North Dakota law, parties to a 

lawsuit generally pay their own attorney fees, absent statutory or contractual 

authority.” Sagebrush Resources, LLC v. Peterson, 2014 ND 3, ¶ 14, 841 

N.W.2d 705.

[¶19] Section 28-26-01(2), N.D.C.C., allows for an award of costs, including 

attorney’s fees, to a prevailing party on a frivolous claim. “Frivolous claims are 

those which have such a complete absence of actual facts or law that a 

reasonable person could not have expected that a court would render judgment 

in that person’s favor.” Sagebrush Resources, 2014 ND 3, ¶ 15 (citing Deacon’s 

Dev., LLP v. Lamb, 2006 ND 172, ¶ 12, 719 N.W.2d 379). The court has 
6

discretion to determine whether the claim is frivolous and how much to award. 

Id. However, if the court finds the claim is frivolous, it must award costs and 

attorney’s fees. Id.; N.D.C.C. § 28-26-01(2).

[¶20] Section 28-26-31, N.D.C.C., also places an award of expenses, including 

attorney’s fees, within the district court’s discretion for pleadings not made in 

good faith. Strand v. Cass Cty., 2008 ND 149, ¶ 14, 753 N.W.2d 872. An award 

of expenses under this statute “must be based on evidence that the pleadings 

were made without reasonable cause and not in good faith, and are found to be 

untrue.” Id.

[¶21] Under these two statutes, a district court’s order is reviewed for an abuse 

of discretion. Strand, 2008 ND 149, ¶ 18. “A court abuses its discretion if it acts 

in an arbitrary, unreasonable, or unconscionable manner, its decision is not 

the product of a rational mental process leading to a reasoned decision, or it 

misinterprets or misapplies the law.” Id. (quoting Dixon v. McKenzie Cty. 

Grazing Association, 2004 ND 40, ¶ 29, 675 N.W.2d 414).

[¶22] In this case, the district court did not award costs or attorney’s fees to 

the Perhuses. A court must award attorney’s fees under section 28-26-01(2), 

N.D.C.C., only after it finds the claim is frivolous. No finding of frivolity exists 

here. Additionally, N.D.C.C. § 28-26-31 requires a court to find the pleadings 

were untrue and made without reasonable cause and not in good faith in order 

to award expenses. The court did not make this finding for any of the claims or 

the lis pendens.

[¶23] The district court did not act in an arbitrary, unreasonable, or 

unconscionable manner when it refused to award costs and attorney’s fees to 

the Perhuses. The court used its discretion when it declined to find frivolous 

claims or pleadings not made in good faith existed. The court analyzed the facts 

of the case and correctly applied and followed the law when it made these 

determinations. Therefore, the court did not abuse its discretion when it 

refused to award costs or attorney’s fees to the Perhuses.
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V

[¶24] We do not address the other arguments raised because they are 

unnecessary to this decision. We affirm the district court’s judgment.

[¶25] Jon J. Jensen, C.J.

Gerald W. VandeWalle

Daniel J. Crothers

Lisa Fair McEvers

Jerod E. Tufte