NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made
before this opinion goes to press.


                                             2018 VT 17

                                            No. 2017-220

Steven Daiello                                                    Supreme Court

                                                                  On Appeal from
   v.                                                             Superior Court, Windham Unit,
                                                                  Civil Division

Town of Vernon                                                    December Term, 2017


Michael R. Kainen, J.

Wanda Otero-Weaver and James W. Swift of Langrock Sperry & Wool, LLP, Middlebury, for
 Plaintiff-Appellant.

James F. Carroll of Carroll, Boe & Pell, P.C., Middlebury, for Defendant-Appellee.


PRESENT: Reiber, C.J., Skoglund, Robinson and Eaton, JJ., and Teachout, Supr. J.,
         Specially Assigned


        ¶ 1.     EATON, J. Plaintiff landowner, who built a residence on leased property owned

by defendant, Town of Vernon, appeals the superior court’s order granting the Town summary

judgment with respect to his claim that the Town breached a covenant of quiet enjoyment implied

in the lease by not providing him access to the property. We reverse and remand for further

proceedings.

        ¶ 2.     This is the third time that issues surrounding plaintiff’s property have reached this

Court. The property is part of glebe land1 first leased by the Town in the early nineteenth century.

The instant claim is premised upon an alleged covenant of quiet enjoyment in an 1838 deed in



        1
          “Glebe land” is defined as “Land possessed as part of the endowment or revenue of a
church or ecclesiastical benefice.” Glebe Black’s Law Dictionary (10th ed. 2014).
which the Town leased the land for the lessee “to farm occupy” and “to hold said granted premises

with all the privileges and appurtenances.” Plaintiff obtained his interest in the leased land through

a quitclaim deed from his wife in 2013. Plaintiff and his wife had received their interest in the

property from a company controlled by plaintiff and a friend. Plaintiff built a residence on the

property in 2000.

       ¶ 3.    At the center of this dispute is Old Stebbins Road,2 which runs east to west along

the southern boundary of plaintiff’s property and crosses the abutting property to the east owned

by Dale and Brenda Merritt. Plaintiff’s chain of title includes “any and all rights held by the

Grantor over and across the discontinued Town Highway formerly known as Stebbins Road . . . if

any there may be.” Stebbins Road was discontinued as a public road in 1904.

       ¶ 4.    In 2006, plaintiff sought to have the Public Service Board (now called the Public

Utility Commission) declare Stebbins Road a public road so that he could obtain utility access to

his property and residence. He claimed that the 1904 decision to discontinue the road was void

because the Town had failed to follow certain statutory procedures. The Merritts intervened and

moved to dismiss the case for lack of jurisdiction. The Board granted the Merritts’ motion, and

this Court affirmed that decision. See In re Doolittle Mountain Lots, Inc., 2007 VT 104, 182 Vt.

617, 938 A.2d 1230 (mem.).

       ¶ 5.    In 2008, the Merritts filed a complaint in the superior court seeking a declaratory

judgment that plaintiff had no legal right of access over Stebbins Road through their property or,

in the alternative, that any right of way over Stebbins Road was limited to prior uses. The Merritts

later amended their complaint, adding a claim that Stebbins Road had never been properly laid out

as a public road because there was no record of the Town having formally accepted or established

an 1801 survey of the road. Plaintiff objected to the amendment, but the court allowed the


       2
            The road is currently referred to as West Road by the general public. In these
proceedings, the superior court and parties have alternatively referred to the road as both Old
Stebbins Road and Stebbins Road. For the sake of consistency and simplicity, we will hereinafter
refer to the road as Stebbins Road.
                                               2
complaint to be amended, and a bench trial was held. Neither party sought to join the Town of

Vernon at any time during the proceedings.

       ¶ 6.    The superior court found that the pertinent section of Stebbins Road had never been

officially laid out as a public road and that, therefore, plaintiff never obtained an abutting right of

access over the road that would have survived the Town’s later discontinuance of the road. See

Okemo Mountain, Inc. v. Town of Ludlow, 171 Vt. 201, 207, 762 A.2d 1219, 1225 (2000) (stating

that abutting landowner has right to access over public road adjacent to private property and further

“retains the private right of access” even after “[the] public road is discontinued or abandoned”).

The court emphasized that although the 1801 survey was initiated under the authority of the town

selectboard, it was not officially approved or adopted by the selectboard, as required by the law.

The court further found that there was no easement by necessity because the property was not

landlocked, having clear access from the west.

       ¶ 7.    Plaintiff appealed to this Court, arguing, among other things, that: (1) the evidence

did not support the court’s finding that Stebbins Road was not properly laid out; and (2) the court

erred in concluding that plaintiff had no easement of necessity because his property was not

landlocked. A three-justice panel of this Court affirmed the superior court’s decision, concluding,

in relevant part, that: (1) the inferences suggesting the Town had properly laid out Stebbins Road

were insufficient to overturn the superior court’s finding that the road had never been property laid

out; and (2) plaintiff did not have an easement by necessity because, even assuming his property

was landlocked, he had failed to demonstrate that there was a common division of land.

Merrittv. Daiello, No. 2010-171, 2010 WL 7799806, at *3-4 (Vt. Oct. 21, 2010) (unpub. mem.),

https://www.vermontjudiciary.org/sites/default/files/documents/eo10-171.pdf [https://perma.cc/

QA27-XTEX]; Okemo, 171 Vt. at 206, 762 A.2d at 1224 (“To obtain a way of necessity, one must

show that (1) there was a division of commonly owned land, and (2) the division resulted in

creating a landlocked parcel.”). In support of the latter conclusion, we noted that there had been

no evidence submitted at trial indicating that plaintiff’s property was ever owned in common with
                                                  3
the Merritts’ property or that the parcels had become landlocked as the result of a common division

of land. Merritt v. Daiello, 2010 WL 7799806, at *2.

        ¶ 8.    In August 2014, plaintiff filed the instant action against the Town, claiming that the

Town had breached an implied covenant of quiet enjoyment in the 1838 lease that included a right

of access to the leased property. The Town filed a motion for summary judgment, arguing that:

(1) for several reasons, plaintiff cannot enforce any right of access which may have existed in the

1838 lease; (2) plaintiff waived any covenant implying a right of access by accepting an

assignment of rights over a discontinued road only if any such right existed; and (3) the glebe land

that includes plaintiff’s property was accessible in 1838 and continued to be accessible over the

next 175 years. As a component of the latter argument, the Town asserted that the 2010 decision

in Merritt v. Daiello had a preclusive effect against plaintiff as a party to that action but not against

the Town as a nonparty to the action. Hence, the Town took the position that plaintiff could not

prevail on his claim that the Town’s action or inaction had impacted access to his property because:

(1) plaintiff was estopped from relitigating the finding in Merritt v. Daiello that he had access from

the west; and (2) notwithstanding the superior court’s finding in that case that Stebbins Road was

never properly laid out as a public road, the Town was not estopped from demonstrating in this

action that Stebbins Road had in fact been properly laid out. In its motion for summary judgment,

the Town presented undisputed facts showing that a late eighteenth-century fire had destroyed

town records that would have proved that Stebbins Road had been properly laid out.

        ¶ 9.    The trial court granted the Town’s summary judgment motion, ruling that: (1) there

is an implied covenant of quiet enjoyment in the 1838 lease that includes a right of access; (2) the

covenant does not guarantee any particular point of access; (3) the covenant is breached if the

lessor causes a substantial interference with the lessee’s use of the premises as contemplated by

the lease; and (4) as a matter of law, the Town did not breach the covenant because the finding in

Merritt v. Daiello that plaintiff had access to his property from the west precluded plaintiff from

relitigating that fact. The court concluded that even though plaintiff did not in fact appear to have
                                                  4
access from the west, applying issue preclusion was fair because of the need for finality of

judgments. Given its resolution of the case, the court expressly declined to address whether any

act or omission by the Town substantially interfered with plaintiff’s enjoyment of his land, whether

the Merritts’ lawsuit and ensuing judgment could be attributed to the Town, whether the Town

was required to ensure access to the property only to the extent access was needed for farming, or

whether plaintiff’s conduct constituted a waiver of his claimed right to access his property.

       ¶ 10.   Plaintiff moved to alter or amend the judgment, arguing that the court’s ruling

would result in manifest injustice. In response, although plaintiff had not moved for summary

judgment, the court gratuitously stated that, based on the undisputed facts before it, it would have

concluded that plaintiff’s property cannot be accessed from the west but that the Town had

properly laid out Stebbins Road before 1801 such that plaintiff had a right to access his property

over the discontinued public road pursuant to the principle stated in Okemo. The court declined

to make these conclusions, however, stating that it could not do so without joining the Merritts as

indispensable parties to relitigate the same issues litigated in 2010 in Merritt v. Daiello before

Judge Howard. The court noted that it was unclear whether the evidence before Judge Howard in

that case was different from the evidence in this case, but that, if there was any manifest injustice,

it occurred in the first case.3 According to the court, applying issue preclusion in this action was

fair because otherwise it would allow plaintiff a second bite at the apple.

       ¶ 11.   On appeal to this Court, plaintiff argues that: (1) he is not precluded from

challenging the lack of access to his property from the west because that issue was not resolved on

appeal in Merritt v. Daiello; and (2) precluding him from relitigating whether Stebbins Road was

properly laid out as a public road is manifestly unjust because it violates public policy against

allowing land to sit idle and sanctions the Town’s breach of its duty to preserve and promote the


       3
         As the court acknowledged, it did not read the transcript of the prior hearing and thus did
not know if Judge Howard’s findings had been based on different evidence. The court’s additional
gratuitous comment suggesting that manifest injustice may have occurred during the 2010
proceeding before Judge Howard was based on incomplete facts and served no purpose.
                                                5
value of glebe lands. The Town challenges both arguments but does not otherwise claim error in

the superior court’s decision. In the Town’s view, plaintiff cannot show a breach of any covenant

of quiet enjoyment that exists with respect to his leased land because: (1) as a party in Merritt v.

Daiello, plaintiff is bound by findings therein confirming that his property is not landlocked; and

(2) as a nonparty to the earlier action, the Town is not precluded from showing, and in fact can

show, that Stebbins Road was properly laid out as a public road and thus the Town did not impair

plaintiff’s access to his property.

        ¶ 12.   Before addressing each of these arguments in turn, we summarize our basic law on

issue preclusion. Issue preclusion, also known as collateral estoppel, is a narrower concept than

claim preclusion, also known as res judicata.4 Berisha v. Hardy, 144 Vt. 136, 138, 474 A.2d 90,

91 (1984). Claim preclusion “bars the litigation of a claim or defense if there exists a final

judgment in former litigation in which the parties, subject matter and causes of action are identical

or substantially identical.” Berlin Convalescent Ctr. v. Stoneman, 159 Vt. 53, 56, 615 A.2d 141,

143 (1992) (quotation omitted) (noting that claim preclusion bars relitigation not only of issues

that actually were litigated but also of those that should have been raised). Issue preclusion, on

the other hand, “bars the subsequent relitigation of an issue which was actually litigated and

decided in a prior case between the parties resulting in a final judgment on the merits, where that

issue was necessary to the resolution of the action.” Id. at 56, 615 A.2d at 144 (quotation omitted).

Both doctrines “protect the courts and the parties against the burden of relitigation, encourage

reliance on judicial decisions, prevent vexatious litigation and decrease the chances of inconsistent

adjudication.” Id. at 57, 615 A.2d at 144.

        ¶ 13.   The elements of issue preclusion are:

                (1) preclusion is asserted against one who was a party or in privity
                with a party in an earlier action; (2) the issue was resolved by a final
                judgment on the merits; (3) the issue is the same as the one raised in

        4
         Res judicata is also sometimes used as a general term for both claim preclusion and issue
preclusion. See Am. Trucking Ass’ns v. Conway, 152 Vt. 363, 368, 566 A.2d 1323, 1327 (1989)
(“[T]he umbrella term res judicata is often applied to the use of both theories of estoppel.”).
                                                 6
                the later action; (4) there was a full and fair opportunity to litigate
                the issue in the earlier action; and (5) applying preclusion in the later
                action is fair.

Trepanier v. Getting Organized, Inc., 155 Vt. 259, 265, 583 A.2d 583, 587 (1990); see Restatement

(Second) of Judgments § 27 (1982) (“When an issue of fact or law is actually litigated and

determined by a valid and final judgment, and the determination is essential to the judgment, the

determination is conclusive in a subsequent action between the parties, whether on the same or a

different claim.”). No single test is determinative as to the last two criteria, which must be

considered on a case-by-case basis. Trepanier, 155 Vt. at 265, 583 A.2d at 587. Among the factors

to be weighed “are the type of issue preclusion, the choice of forum, the incentive to litigate, the

foreseeability of future litigation, the legal standards and burdens employed in each action, the

procedural opportunities available in each forum, and the existence of inconsistent determinations

of the same issue in separate prior cases.” Id.

        ¶ 14.   Like most courts, we have abandoned the doctrine of mutuality, which disallowed

either party to use a prior judgment against the other unless both parties were bound by that

judgment. Id. at 264, 266, 583 A.2d at 587, 588 (“In effect, the doctrine [of mutuality] provides

parties who litigated and lost an opportunity to relitigate identical issues against new parties in

another action.”). Thus, “[t]he absence of mutuality will not preclude [nonparties’] use of

collateral estoppel unless the party denying the estoppel shows special circumstances indicating

unfairness.” Id. at 266, 583 A.2d at 588; see 18A C. Wright et al., Federal Practice and Procedure

§ 4448, at 315 (3d ed. 2017) (stating that generally nonparties may take advantage of preclusive

effect of prior judgment on party absent special reasons most often associated with determination

that first litigation did not afford party full and fair opportunity to try issue offered for preclusion);

see also id. § 4465, at 712 (stating that nonmutual preclusion is most often denied when “there was

not a full and fair opportunity to litigate in the prior action” or when courts use their discretion “to

achieve justice and equity”). On the other hand, nonparties are ordinarily not bound by issues


                                                    7
resolved in a prior judgment. Id. § 4449, at 317 (“The basic premise of preclusion is that parties

to a prior action are bound and nonparties are not bound.”).

        ¶ 15.   We now turn to the first of the two preclusion questions raised by the parties—

whether plaintiff should be precluded from litigating in this case whether he has access to his

property from the west. The answer to this question is straightforward. Commentators and courts

alike have held that preclusion should be denied with respect to any finding that was untested on

appellate review:

                Since appellate review is an integral part of the system, there is
                strong reason to insist that preclusion should be denied to findings
                that could not be tested by the appellate procedure ordinarily
                available, either by appeal or by cross-appeal.

                ....

                 Appellate reversal of a judgment on one ground may leave without
                review findings that, by virtue of the reversal, have become
                unnecessary and indeed contrary to the judgment dictated by the
                reversal. Denial of preclusion in this situation is appropriate not
                only because the findings are unnecessary but also because of the
                general principle that an appellate disposition on grounds that
                foreclose review of other grounds defeats use of the unreviewed
                grounds for preclusion.

                ....

                 The federal decisions agree with the Restatement view that once
                an appellate court has affirmed on one ground and passed over
                another, preclusion does not attach to the ground omitted from its
                decision.

18 C. Wright et al., Federal Practice and Procedure § 4421, at 607, 609, 619 (2016); see

Restatement (Second) of Judgments § 27 cmt. o (“If the appellate court upholds one of the[]

determinations [by the lower court] as sufficient and refuses to consider whether or not the other

is sufficient and accordingly affirms the judgment, the judgment is conclusive [only] as to the first

determination.”); see also Niagara Mohawk Power Corp. v. Tonawanda Band of Seneca Indians,

94 F.3d 747, 754 (2d Cir. 1996) (“It is a well-established principle of federal law that if an appellate

court considers only one of a lower court’s alternative bases for its holding, affirming a judgment


                                                   8
without reaching the alternative bases, only the basis that is actually considered can have any

preclusive effect in subsequent litigation.”); S. Bos. Allied War Veterans Council v. City of Bos.,

875 F. Supp. 891, 909 (D. Mass. 1995) (“Where . . . the appellate court did not affirm every ruling

of the lower court, only the decisions essential to the appellate court’s holding are entitled to

preclusive effect.”); State v. Stanford, 828 P.2d 459, 461 (Or. Ct. App. 1992) (“When an appellate

court refuses to consider an issue and affirms a judgment on a different ground, a party is not

prevented from relitigating that issue.”).

       ¶ 16.   Specifically, when, as in this case, “a lower court’s decision on a question of fact

is challenged in a proper appeal, and the appellate court does not pass upon that finding of fact in

reaching its decision, the lower court’s finding is not conclusive against the appellant in a

subsequent suit on a different cause of action.” Masco Corp. v. United States, 303 F.3d 1316,

1330 (Fed. Cir. 2002) (quotation omitted). In relevant part, issue preclusion is limited in this way

because “a factual issue cannot, consistent with the statutory right to appellate review, be said to

have been finally adjudicated when the appellant has been precluded from obtaining the appellate

review which he sought and to which he would have been entitled if the fact had been material.”

Id.

       ¶ 17.   Here, in Merritt v. Daiello, plaintiff challenged on appeal the trial court’s finding

of access to his property from the west, but this Court declined to review that finding because it

upheld on different grounds the trial court’s conclusion that there was no easement by necessity.

Accordingly, plaintiff is not precluded in this proceeding from relitigating whether he has access

to this property from the west.

       ¶ 18.   The second preclusion question raised herein—whether the parties are precluded

from relitigating in this case whether Stebbins Road was properly laid out by the Town—is a far

thornier question. We address this issue because of the uncertainty surrounding whether plaintiff

has access to his property from the west.


                                                 9
        ¶ 19.   The issue of whether the Town properly laid out Stebbins Road was raised in

Merritt v. Daiello, determined by the superior court in the Merritts’ favor, and challenged by

plaintiff on appeal. However, unlike the issue of whether plaintiff had access to the west, this issue

was addressed and upheld on appeal. Relying upon the deferential standard of review accorded to

trial court findings, we concluded in Merritt v. Daiello that, “viewing the evidence in the light most

favorable to the prevailing party, the evidence was sufficient to conclude that the town did not

properly lay out Stebbins Road.” 2010 WL 7799806, at *3 (“To overturn a finding, an appellant

must demonstrate not just that the evidence underlying it is contradicted but that no credible

evidence supports it.”).

        ¶ 20.   Notwithstanding the Merritts’ claim in their amended complaint in Merritt v.

Daiello that plaintiff was not entitled to access his property via Stebbins Road because the Town

had never properly laid out the road as a public road, neither the Merritts, nor plaintiff, nor the trial

court joined the Town in that action. Now, in this action in which plaintiff is suing the Town based

on a claimed lack of access to his leased property, the Town argues in part that it did not breach

any covenant of quiet enjoyment based on a lack of access to plaintiff’s leased property because it

can conclusively demonstrate that in fact Stebbins Road was properly laid out as a public road.

The Town contends that, as a nonparty to the earlier action, it is not bound by any facts established

in that action and thus can assert contrary facts to defeat plaintiff’s claim that it breached any

covenant of quiet enjoyment associated with plaintiff’s leased property.

        ¶ 21.   The Town is correct that because it was not a party in Merritt v. Daiello, it is not

precluded from arguing that Stebbins Road was properly laid out as a public road. See 18A Miller,

supra, § 4448, at 315 (“The central proposition that a party is bound is balanced by the rule that

ordinarily nonparties are not bound.”). There is no suggestion in the record that the Town declined

to take part in the prior suit brought by the Merritts or even that it was aware of that suit. See id.

§ 4452, at 381, 397 (noting that most courts have held that “a nonparty is not precluded from

relitigating matters decided in a prior action simply because it passed by an opportunity to
                                              10
intervene” but “some thoughtful commentators have suggested that courts should develop a new

procedure to foreclose nonparties who have deliberately bypassed the opportunity to intervene”).

       ¶ 22.   Hence, on remand, the trial court may find that plaintiff in fact has no access from

the west, but that the Town is not liable based on an alleged breach of an implied covenant of quiet

enjoyment because it in fact properly laid out Stebbins Road and thus did not interfere with

plaintiff’s access over that road. Such a ruling would result in two inconsistent judgments that

together would thwart plaintiff’s attempt to gain access to his property or compensation, if any is

due, for a lack of access: one that plaintiff has no right to access his property from Stebbins Road

because the Town never properly laid out the road, and the other that the Town is not liable for a

lack of access to plaintiff’s property because the Town properly laid out Stebbins Road. Ironically,

this is the very situation that the doctrine of issue preclusion is designed to prevent.

       ¶ 23.   Accordingly, assuming on remand that western access does not provide an

independent basis for judgment for the Town and that the superior court is compelled by the

Town’s position to decide whether Stebbins Road was properly laid out, that issue is back on the

table, even as to the Merritts, who will become an indispensable party.5 Under this scenario, we

hold that, for the reasons stated below, plaintiff would not be precluded from relitigating whether

Stebbins Road was properly laid out—even against the Merritts. We emphasize, however, that in

so holding, we are not deciding the scope of any implied covenant of quiet enjoyment attributable

to the Town. Nor are we deciding the nature or extent of any access over Stebbins Road or any

other road to which plaintiff may be entitled.

       ¶ 24.   Even when an essential issue is actually litigated and determined in a final

judgment, relitigation of that issue in a later action between the parties to the initial action is not

precluded when, among other things, there exists “a clear and convincing need for a new



       5
          Although not bound by the earlier litigation concerning Stebbins Road, the Town would
be free to accept the outcome there, in which case plaintiff would not be entitled to relitigate the
issue, and the Merritts would not be indispensable parties to this action.
                                                 11
determination of the issue . . . because it was not sufficiently foreseeable at the time of the initial

action that the issue would arise in the context of a subsequent action.” Restatement (Second) of

Judgments § 28(5). To be sure, this exception to issue preclusion between parties to an earlier

action must be cautiously applied only in rare “instances in which the interests supporting a new

determination of an issue already determined outweigh the resulting burden on the other party and

the courts.” Id. § 28 cmt. g. We conclude that this is such a rare instance, where the Town was

not joined in the first action despite the nature of the issue and where, as a result of the Town not

being joined in that action, there is the real potential for inconsistent judgments impacting the

Town’s responsibilities and plaintiff’s rights.

       ¶ 25.   The lack of foreseeability as to a later action is a general limitation applied “to

reduce the risk that issue preclusion may perpetuate and proliferate error.” 18 C. Wright, supra,

§ 4424, at 675 (“The suggestion that issue preclusion should be conditioned by a general

requirement that the possibility of preclusion in the context of a second case have been foreseeable

at the time of the first has now been advanced by several courts and commentators.”). An

insistence on issue preclusion in such instances may “proliferate an initial error to other claims

advanced in other settings” even when “the initial decision often would have come out differently

if the first tribunal had been confronted with the later claims supported by the very same evidence

that was advanced in the first action.” Id. at 691-92.

       ¶ 26.   As the plaintiffs in Merritt v. Daiello, the Merritts sought a declaratory judgment

that plaintiff was not entitled to cross their property via Stebbins Road. They initially argued that

the Town’s discontinuance of the road precluded plaintiff’s access, but later amended their

complaint to allege that plaintiff was not entitled to access over the road because the Town never

properly laid it out. Notwithstanding their challenge to the Town having properly laid out Stebbins

Road as a public road, the Merritts did not join the Town in that action. Nor did plaintiff seek to

have the Town joined. See Restatement (Second) of Judgments § 29(3) cmt. e (“[W]here a plaintiff

brings a subsequent action involving the same issues against a person whom he could appropriately
                                                12
have joined as a co-defendant in the first action, only strongly compelling circumstances justify

withholding preclusion.”).

       ¶ 27.   In relevant part, our rule regarding necessary joinder is substantially identical to the

federal rule and provides as follows:

               A person who is subject to service of process shall be joined as a
               party in the action if (1) in the person’s absence complete relief
               cannot be accorded among those already parties, or (2) the person
               claims an interest relating to the subject of the action and is so
               situated that the disposition of the action in the person’s absence
               may (i) as a practical matter impair or impede the person’s ability to
               protect that interest or (ii) leave any of the persons already parties
               subject to a substantial risk of incurring double, multiple, or
               otherwise inconsistent obligations by reason of the person’s claimed
               interest. If the person has not been so joined, the court shall order
               that the person be made a party.

Vermont Rule of Civil Procedure 19(a).

       ¶ 28.   The first stated basis for necessary joinder “is designed to protect those who already

are parties by requiring the presence of all persons who have an interest in the litigation so that

any relief that may be awarded will effectively and completely adjudicate the dispute.” 7 C. Wright

et al., Federal Practice and Procedure § 1604, at 41 (2001). In evaluating this factor, courts have

also considered “whether joinder will avoid multiple actions and potentially inconsistent verdicts.”

Id. at 47. The second basis for necessary joinder comes into play when a person’s absence may

prejudice either that person or those already before the court. Id. at 51. Joinder is required “if the

action might detrimentally affect a party’s or the absentee’s ability to protect his property or to

prosecute or defend any subsequent litigation in which the absentee might become involved.” Id.

at 61. Rule 19 is fully applicable in declaratory judgment actions, id. at 246, and local governments

should be joined “when they will be affected by the action or adequate relief cannot be awarded in

their absence.” 6 Id. at 271.



       6
         In suits against lessees of land, courts have frequently found the owner’s interest to be
implicated so as to require joinder. See, e.g., Giambelluca v. Dravo Basic Materials Co., 131
F.R.D. 475, 477 (E.D. La. 1990) (concluding that lessor of adjoining property was indispensable
                                                13
        ¶ 29.   Here, we cannot say that it should have been foreseeable to either the trial court or

the parties that the judgment in Merritt v. Daiello would result in plaintiff’s later action claiming

that the Town had breached a covenant of quiet enjoyment implied in his lease by impeding access

to his property. We can say, however, that by not joining the Town in their earlier action seeking

to prevent plaintiff from accessing his property through their property based on a claim that the

Town had failed to properly lay out the public road crossing their property, the Merritts ran the

risk that issues resolved in that action would be subject to religitation in any later action involving

the Town and themselves as indispensable parties. As between the Merritts and plaintiff, we

conclude that the Merritts had the greater obligation to join the Town in the earlier action, insofar

as they brought the action to exclude plaintiff from ingress and egress across their property and

they were the party claiming that the Town had not properly laid out the road that was the subject

of their lawsuit.

        The superior court’s September 21, 2016 and June 13, 2017 decisions are reversed, and the
matter is remanded for further proceedings consistent with this opinion.


                                                 FOR THE COURT:



                                                 Associate Justice




party in action brought by landowners seeking to enjoin use of road running through landowners’
property).
                                               14
