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Date: 02-13-2009

Case Style: David W. Carlson and Linda Carlson, et al. v. Lockwood L. Clark and Claire B. Clark

Case Number: 2009 VT 17

Judge: Johnson

Court: Supreme Court of Vermont on appeal from the Superior Court of Grand Isle County

Plaintiff's Attorney: John Gravel and Tom Nuovo, Bauer, Gravel, Farnham, Nuovo, Parker & Lang, Burlington, Burlington, Vermont for Plaintiffs-Appellants.

Defendant's Attorney: John Collins and Mike Harris, Collins, McMahon & Harris, PLLC, Burlington, for Defendants-Appellees.

Description: ¶ 1. JOHNSON, J. Plaintiffs challenge the trial court’s denial of their request to unilaterally relocate a shoreline right-of-way held by defendants Lockwood and Claire Clark. According to plaintiffs, the Clarks hold an easement by necessity, rather than a prescriptive easement, and plaintiffs are entitled to move the Clarks’ easement to a location plaintiffs deem more convenient. The Clarks respond that their right to use the shoreline road was conclusively determined in prior litigation with plaintiffs’ predecessor-in-interest, and that plaintiffs are barred by the doctrine of res judicata from raising this issue for a second time. We agree with the Clarks, and affirm.

¶ 2. Plaintiffs own real property on a peninsula called Windmill Point in Alburg, Vermont, derived from a common grantor, the Aqua Terra Corporation. The Clarks own adjacent property as well as an historic lighthouse on the tip of the peninsula. The Clarks have a right-of-way to their property that runs along the shoreline of Lake Champlain, behind plaintiffs’ homes. Plaintiffs purchased their lots with clear notice of the existing right-of-way. They nonetheless claimed that increased traffic on the road was presenting a safety hazard and interfering with their ability to enjoy their backyards. Plaintiffs asked the Clarks to move their right-of-way to a new access road running along the center of the peninsula. The Clarks declined to do so.

¶ 3. In March 2004, plaintiffs sued the Clarks, alleging that the Clarks held an easement by necessity, and that the necessity no longer existed because plaintiffs had created a new access road. Plaintiffs asked the court to “extinguish” the existing right-of-way, and order the Clarks to use the private roadway they had constructed. Plaintiffs moved for summary judgment and the court denied their motion. The court found that both the servient and dominant estates must agree to the relocation of an existing easement. The court also noted that material facts remained in dispute regarding the level of traffic on the shoreline road.

¶ 4. In March 2006, the Clarks moved for partial summary judgment, arguing that their vested prescriptive easement rights defeated plaintiffs’ attempt to unilaterally move the right-of-way. The trial court agreed, finding that the earlier summary judgment ruling had resolved the issue of whether the right-of-way could be unilaterally relocated. The court declared the Clarks’ easement to be prescriptive, and reiterated that it could not be relocated without the Clarks’ consent.

¶ 5. Before the issue of the traffic level on the road could be tried, the parties reached an agreement on the road’s use. They stipulated that use of the shoreline road would be limited to the Clarks and their family members, and that other visitors would use the center road. As part of their stipulation, the parties also reserved the right to challenge the trial court’s underlying orders. In July 2007, the trial court issued a final order, recognizing the Clarks’ right to use their existing right-of-way. Plaintiffs appealed.

¶ 6. On appeal, plaintiffs assert that, notwithstanding this Court’s ruling in prior litigation between the Clarks and plaintiffs’ predecessor-in-interest, the Clarks hold an easement by necessity. They suggest that any prior statement that the Clarks held a prescriptive easement was “unnecessary and served only to confuse the true nature of the easement.” Plaintiffs argue that because the Clarks’ easement is one of necessity, they have the right to relocate it unilaterally.[1]

¶ 7. As plaintiffs conceded below, the nature of the Clarks’ right to use this road has already been litigated and determined to be a prescriptive easement.[2] See Clark v. Aqua Terra Corp., 133 Vt. 54, 329 A.2d 666 (1974). In Aqua Terra, we recounted the following history of the shoreline road. In 1857, one Mott, who owned the entire Windmill Point peninsula, conveyed the lighthouse property to the United States. The deed did not include an express right of access, but following the conveyance, the lighthouse keepers and family members used the shoreline road to access the property. In 1946, the United States conveyed the lighthouse property to a private owner, again with no mention of access to the property. Evidence showed, however, that from 1949 forward, there was continuous use of the shoreline road by the owners of the lighthouse property, including by the Clarks, who acquired the property in 1963.

¶ 8. Mott eventually transferred his property to Aqua Terra Corporation, and in 1972, Aqua Terra physically blocked the shoreline right-of-way. The Clarks filed a complaint for injunctive relief, seeking the removal of the physical barrier and an order permanently enjoining Aqua Terra from interfering with their use of the right-of-way. The Clarks asserted that the right-of-way had been used to access their property for over sixty years. Aqua Terra responded that any prior use of this road was permissive. Following a trial, the court issued a written order finding that there had been open, notorious, continuous, and adverse use of the shoreline road since 1949. The court concluded that the Clarks had obtained a right-of-way by prescription, “defined as that parcel of land on the westerly side of Windmill Point . . . from the terminus of the town road at the old ferry landing directly to the northerly gate of [the Clarks].” The court permanently enjoined Aqua Terra from interfering with the described right-of-way.

¶ 9. While neither party appears to have directly raised the issue of an easement by necessity, the Clarks did allege in their complaint that no public road served their property, although they noted that the property was accessible by water. In a related vein, Aqua Terra asked the court to find, following trial, that Lake Champlain was a navigable waterway, and that at the time of the initial conveyance to the United States, the property was accessible by a water route over Lake Champlain. Aqua Terra also maintained that there had been no evidence presented at trial as to whether any public roads served the lighthouse property at the time of the initial conveyance. As reflected above, the trial court found the easement to have been acquired by prescription, not implied by necessity. It noted in its findings, however, that access to the lighthouse could be had by water, as it had been in the past, although such access would be limited during much of the year due to weather conditions.

¶ 10. Aqua Terra appealed from the trial court’s decision, arguing that the prior use of the right-of-way had been permissive, not adverse, and thus, the Clarks could not have obtained a prescriptive right of way. We rejected this argument and affirmed the trial court’s order. In reciting the facts, we noted, sua sponte, that Mott’s conveyance to the United States in 1857 “would generate in the United States a right-of-way by necessity,” which would attach to the land and pass to succeeding owners. Aqua Terra, 133 Vt. at 56, 329 A.2d at 667. No further specific mention was made of a right-of-way by necessity, however. Instead, the Court discussed the trial court’s finding that the Clarks’ right was acquired by prescription and that it had not been abandoned. We concluded, in response to the arguments raised by Aqua Terra, that it was for the trial court to weigh the evidence. Id. at 57, 329 A.2d at 668.

¶ 11. Although the case was disposed of by deferring to the trial court’s finding of fact that the use was adverse, we gave a further response to Aqua Terra’s position that the use was permissive. “But assuming the facts to be as [Aqua Terra] urges them,” we reasoned, the result would be the same. Id. Once the right attached, we explained, whether it arose at the time of the initial conveyance or through prescription, it could not be divested by future permissive use of the road. Id. at 57-58, 329 A.2d at 668. Although this discussion ensued in the context of the Clarks’ prescriptive claim, the opinion does not further characterize the right.

¶ 12. It is fair to say, however, that the majority of our discussion in the case involved the issues that were actually litigated between the parties in the superior court, which were adverse use, abandonment, and permission. Moreover, we affirmed the trial court’s judgment on appeal, and we did not note that we were affirming on an alternate legal theory, as we are entitled to do on appeal. We read Aqua Terra to affirm the trial court’s decision that the Clarks hold a right-of-way by prescription, and we construe the Court’s reference to a possible easement by necessity as dicta.[3]

¶ 13. Because the issue of the Clarks’ easement right has been litigated, plaintiffs are now barred from trying to recharacterize the nature of that right. As we have often repeated, “[u]nder the doctrine of claim preclusion, a final judgment in previous litigation bars subsequent litigation if the parties, subject matter, and cause(s) of action in both matters are the same or substantially identical.” Faulkner v. Caledonia County Fair Ass’n, 2004 VT 123, ¶ 8, 178 Vt. 51, 869 A.2d 103. The doctrine “bars parties from relitigating, not only those claims and issues that were previously litigated, but also those that could have been litigated in a prior action.” Merrilees v. Treasurer, 159 Vt. 623, 624, 618 A.2d 1314, 1316 (1992) (mem.)[4]; see also Moitie, 452 U.S. at 398 (“A final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.”). The doctrine of claim preclusion rests on the “fundamental precept that a final judgment on the merits puts an end to the cause of action, which cannot again be brought into litigation between the parties upon any ground whatever.” Faulkner, 2004 VT 123, ¶ 8 (quotations omitted). In actions such as this one involving real property, “the interest in repose which is the basis for the claim preclusion doctrine combines with the interest of society in stability and reliability of title to real property to encourage strict application of the doctrine.” 18 J. Moore, supra, § 131.23[4], at 131-65-131-66.

¶ 14. In Aqua Terra, we decided the only issue litigated by the parties—did the Clarks have a right to use the shoreline road and if so, had they abandoned it, or was it overcome by Aqua Terra’s claim that the use was permissive? The Clarks claimed, and we decided, that they had acquired a right by prescription, a right that had not been abandoned. Aqua Terra, 133 Vt. at 57-58, ¶¶ 13-16, 329 A.2d at 668. Our discussion of Aqua Terra in Berge v. State, 2006 VT 116, 181 Vt. 1, 915 A.2d 189, cited by plaintiffs, did not and could not alter the holding of Aqua Terra with respect to the parties before the Court.

¶ 15. As the dissent recognizes, for purposes of res judicata, a “cause of action is the same if the same evidence will support the action in both instances.” Hill v. Grandey, 132 Vt. 460, 463, 321 A.2d 28, 31 (1974). “The element of identity of causes of action, for res judicata purposes, applies to affirmative defenses,” and thus, “the doctrine specifically bars defendants from using defenses available in one action as the basis for a claim in a later action.” Lamb, 165 Vt. at 381, 683 A.2d at 735 (quotation omitted). This litigation plainly presents the same essential cause of action as that presented in Aqua Terra, and it rests on exactly the same evidence. Citing the same series of real estate transactions, plaintiffs now ask this Court to construe those transactions differently than did the trial court, and this Court, in the first litigation. The doctrine of res judicata is explicitly designed to prevent this result. See Agway, Inc. v. Gray, 167 Vt. 313, 316, 706 A.2d 440, 442 (1997) (doctrine of res judicata based upon considerations of public policy that there be an end to litigation after each party has had a full and fair opportunity to be heard).

¶ 16. Accepting the issue as framed by the dissent, allowing plaintiffs to bring the current action would also “‘nullify the initial judgment or . . . impair rights established in the initial action.’ “ Ante, ¶ 11 (quoting Restatement (Second) of Judgments § 22(2)(b) (1982)). A ruling that the Clarks now hold an easement by necessity, and not a prescriptive easement, would necessarily undermine our decision in Aqua Terra, which defined the Clarks’ right differently, and it would impair the Clarks’ property rights established through that litigation. See Restatement (Second) of Judgments § 22 cmt. f (explaining that issue preclusion is appropriate where claim is “such that its successful prosecution in a subsequent action would nullify the [first] judgment, for example, . . . by depriving the plaintiff in the first action of property rights vested in him under the first judgment”). The Clarks’ right to use the shoreline road has been litigated, and plaintiffs are now barred from seeking, for a second time, to extinguish the Clarks’ right-of-way. See 18 J. Moore, supra, § 131.10[2], at 131-17 (“The concept of bar prevents a plaintiff who loses in litigation from bringing a subsequent action based on the same transaction or series of transactions by simply asserting additional facts or by proceeding under a different legal theory.”).

¶ 17. We note, moreover, that both parties touched on necessity issues in the first litigation. The trial court was not persuaded by this evidence, finding that the Clarks had acquired a prescriptive easement—one acquired through longstanding, hostile, open, and notorious use of the road—and not an easement implied by necessity. Certainly, Aqua Terra’s defense in the first litigation could have more explicitly included what its successors-in-interest now see as a more flexible legal theory on which to base the Clarks’ entitlement—that the right-of-way was established by necessity and may be relocated.[5] Plaintiffs are simply attempting to apply a new legal theory to the same facts in a second action. This does not present a difficult question in claim preclusion. The point is that there was a full and fair opportunity to litigate the nature of the right-of-way the first time, and additional legal theories are now foreclosed.[6] See, e.g., Nevada v. United States, 463 U.S. 110, 130 (“The final judgment puts an end to the cause of action, which cannot again be brought into litigation between the parties upon any ground whatsoever.” (quotation omitted)); Lubrizol Corp. v. Exxon Corp., 929 F.2d 960, 963 (3d Cir. 1991) (additional legal theory will not defeat preclusion when acts complained of, material facts alleged, and evidence required to prove allegations, are same as in prior action); In re Teltronics Servs., Inc., 762 F.2d 185, 193 (2d Cir. 1985) (“New legal theories do not amount to a new cause of action so as to defeat the application of the principle of res judicata.”).

¶ 18. We did not hold otherwise in Cassani v. Northfield Sav. Bank, 2005 VT 127, 179 Vt. 204, 893 A.2d 325, cited by plaintiffs. In that case, the plaintiffs sought reformation of a deed after a declaratory judgment action decided that the deeded easement was so inaccurate that it could not be interpreted to grant any effective right-of-way, and that it was fatally mistaken. Id. ¶ 14. Plaintiffs sought reformation of the deed, alleging that it was based on a mutual mistake of the parties. The first action was simply a construction of the deed, and a declaration of the rights granted to the plaintiffs under the deed; the second was an equitable action aimed at reforming the deed to carry out what the plaintiffs claimed was the true intention of the parties. Id. The two actions presented different issues, and the first declaratory judgment action decided only the preliminary issue of whether the deed, as written, established an easement. Id. ¶ 13.

¶ 19. Plaintiffs claim that Cassani permits a second action here because the Clarks’ first action sought to prove the existence of the right-of-way while plaintiffs’ present action seeks only to relocate it, and these issues are different. But plaintiffs seek to relocate the right-of-way unilaterally, and that argument is based, by their own contention, on establishing first that the nature of the right-of-way is one by necessity and not by prescription.[7] The issue in Aqua Terra—the nature of the Clarks’ interest in the right-of-way—goes to the heart of plaintiffs’ claim in this action. That action was not limited, as plaintiffs contend, to a mere declaration that the right-of-way existed. A determination of whether the right-of-way existed included the legal basis on which the Clarks had access to it. One issue could not be decided without the other. And, unlike Cassani, what was decided in Aqua Terra necessarily forecloses the first hurdle plaintiffs attempt to surmount.

¶ 20. Because this litigation involves the same parties, subject matter, and causes of action as the Aqua Terra case decided in 1974, all of the elements of claim preclusion have been satisfied, and plaintiffs’ attempt to change the legal basis on which the Clarks hold their easement is barred. See Lamb, 165 Vt. at 379, 683 A.2d at 734. Plaintiffs’ challenge to the trial court’s decision is without merit.

* * *

Outcome: Affirmed.

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Defendant's Experts:


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