Vogel Vs. The Marla Bay Protective Ass'N, Inc. C/W 81424 ( 2021 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
CLAUDETTE D. VOGEL, TRUSTEE OF No. 81123
THE VOGEL FAMILY TRUST UNDER
AGREEMENT DATED OCTOBER 25,
2016,
Appellant,
vs. FILED
THE MARLA BAY PROTECTIVE ,
ASSOCIATION; 610 LAKESHORE LLC, DEC 1 7 2021
A NEVADA LIMITED LIABILITY ELIZAÐE114 A. BROWN _
CLER14)(1UPREIVE COUR
COMPANY; 650 LAKESHORE LLC, A
NEVADA LIMITED LIABILITY By DEPLIWACLE
COMPANY; JOHN F. AHERN AND
JUDITH W. AHERN, TRUSTEES OF
THE JOHN F. AHERN FAMILY TRUST
UTD JULY 13, 1983; RILEY M.
BECKETT AND JANE A. BECKETT, AS
TRUSTEES OF THE BECKETT
FAMILY 1994 TRUST, DATED
DECEMBER 7, 1994; CHARLES D.
BLOCH AND CAROL A. BLOCH, CO-
TRUSTEES OF THE CHARLES D.
BLOCH AND CAROL A. BLOCH
REVOCABLE LIVING TRUST, DATED
APRIL 14, 2000; BARBARA BOUCKE,
AS TRUSTEE, OR THE SUCCESSOR
TRUSTEE OR, TRUSTEES, U/A/D
NOVEMBER 15, 1990, AS AMENDED,
CREATING THE BARBARA BOUCKE
SEPARATE PROPERTY TRUST;
JOSEPH T. BREEZE AND
CONSTANCE T. BREEZE, HUSBAND
AND WIFE AS COMMUNITY
PROPERTY WITH RIGHT OF
SURVIVORSHIP; C. JOEL CASBURN
AND C. LYNN CASBURN; DARRELL F.
CHAMPION AND JOY H. CHAMPION
TRUST, UNDER INSTRUMENT
DATED MARCH 27, 2012; MICHAEL
SUPREME COURT
OF
NEVADA
(u) 1947A
al -3(00°IA.
CHILCOAT AND CHERYL CHILCOAT,
HUSBAND AND WIFE AS
COMMUNITY PROPERTY WITH THE
RIGHT OF SURVIVORSHIP;
CHARMAYNE L. ZUCKER, STEVEN F.
PETERSEN AND L. ROBERT LEGOY,
JR., AS CO-TRUSTEES OF THE CLC
FAMILY TRUST, DATED APRIL 15,
2008; CHARLES M. CORSIGLIA, SOLE
TRUSTEE OF THE NANCY M.
CORSIGLIA LIVING TRUST;
SCHUYLER HAMILTON EARL, II,
TRUSTEE OF THE SCHUYLER H.
EARL II LIVING TRUST DATED
9/13/88; NANCY RUTH PAULSON
EDMUNDSON AND EDWARD A.
WHITE AND PATRICIA P. WHITE, AS
TRUSTEES OF THE WHITE FAMILY
TRUST U/A DTD. JUNE 2, 1999; DARIN
G. FAIN, AN UNMARRIED MAN AS
HIS SOLE AND SEPARATE
PROPERTY; DENNIS B. FARNESI AND
ANA T. FARNESI, AS CO-TRUSTEES
OF THE DENNIS B. AND ANA T.
FARNESI REVOCABLE TRUST DATED
APRIL 10, 1992, AND RESTATED
JUNE 17, 2004; SCOTT FINK AND
KATHY KLEIN, TRUSTEES OF THE
SCOTT FINK AND KATHY KLEIN
LIVING TRUST DATED 12-9-91; JOHN
FINLEY; JEANNE FINLEY; JOSEPH
FINLEY; JANE FINLEY; DEEANN
FULSTONE, TRUSTEE OF THE
DEEANN FULSTONE 2010 TRUST,
DATED FEBRUARY 18, 2010; DONNA
HAWKSFORD, AS TRUSTEE OF THE
DONNA HAWKSFORD TRUST, DATED
JULY 9, 2008; SCOTT H. HILKENE,
TRUSTEE OF THE SCOTT H.
HILKENE REVOCABLE TRUST,
DATED MAY 11, 1993; SARAH V.
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MI I W/ A e
lattfia:,
ANAYA, TRUSTEE OF THE SARAH V.
ANAYA TRUST DATED DECEMBER
31, 2003; F. SCOTT HINDES AND
NANCY NELSON HINDES, TRUSTEES
OF THE F. SCOTT HINDES AND
NANCY NELSON HINDES 2012
RESIDENTIAL PROPERTY TRUST,
DATED SEPTEMBER 24, 2012; PAUL
M. HWANG AND JUDY FUJII-HWANG,
HUSBAND AND WIFE; AUDREY J.
LAMPERT AS SOLE TRUSTEE OF THE
LAMPERT FAMILY TRUST, DATED
JULY 23, 2008; JOSHUA DEMPSEY
LAMPERT; MARIANNE FULSTONE
LEINASSAR; ALAN SCOTT
LEINASSAR; DONALD SAMUEL
LOBATO; ANDREW CURTIS
LUCCHESI; MARLA BAY, LLC, A
NEVADA LIMITED LIABILITY
COMPANY; JOHN A. MCQUIRK AND
CAROL A. MCQUIRK, AS TRUSTEES
OF THE MCQUIRK FAMILY 1999
TRUST DATED MAY 13, 1999;
ELIZABETH A. NELSON, TRUSTEE OF
THE NELSON REVOCABLE TRUST
CREATED OCTOBER 5, 2006; PHYLLIS
T. PIKE, AS TRUSTEE UNDER THE
ROY AND PHYLLIS PIKE FAMILY
TRUST AGREEMENT DATED
DECEMBER 13, 2007; LARRY B.
PILGRIM AND TOM M. PILGRIM AS
CO-TRUSTEES OF THE LT PILGRIM
REVOCABLE TRUST DATED AUGUST
4, 2015; ROLAND E. RENDE AND
PALMINA M. RENDE, AS CO-
TRUSTEES OF THE RENDE FAMILY
TRUST, U/A DATED SEPTEMBER 9,
1983; MILTON E. RIGHETII AND
HOPE RIGHETTI, TRUSTEES OF THE
MILTON & HOPE RIGHETTI 2016
TRUST, UID APRIL 11, 2016;
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NICHOLAS D.E. ROSSI, JR. AND
DEBRA A. ROSSI, AS CO-TRUSTEES
OF THE NICHOLAS D.E. ROSSI, JR.
FAMILY TRUST AGREEMENT DATED
APRIL 26, 1996, AS AMENDED AND
RESTATED; GARRETT D. SCHWARTZ
AND NITA S. SCHWARTZ; SCOTT M.
SMITH AND PIPER L. SMITH, CO-
TRUSTEES OF THE SCOTT M. AND
PIPER L. SMITH 2015 REVOCABLE
TRUST DATED MAY 18, 2015; JOHN
STEPHANS AND MARY STEPHANS,
TRUSTEES OF THE STEPHANS
LIVING TRUST DATED DECEMBER
14, 2006; CATHY J. STEWART,
TRUSTEE OF THE CATHY J.
STEWART TRUST, DATED
NOVEMBER 17, 2010; DONALD R.
SWICKARD, TRUSTEE OF THE DON
SWICKARD FAMILY TRUST DATED
AUG. 15, 1987; GLORIA JANIS LEE,
TRUSTEE OF THE JAN LEE
SEPARATE PROPERTY REVOCABLE
TRUST; MATTHEW TILL; JAMES S.
VOORHEES AND JULIE E.
VOORHEES, TRUSTEES OF THE
VOORHEES FAMILY TRUST, DATED 3
DECEMBER, 2009; CHARLES J. VOSS
AND MARTHA L. VOSS, TRUSTEES
OF THE VOSS FAMILY TRUST,
DATED MAY 5, 2016; ROBERT E.
WHEAR AND TWYILA S. WHEAR, AS
CO-TRUSTEES OF THE ROBERT E.
WHEAR OREGON RESIDENCE TRUST
AGREEMENT DATED APRIL 12, 1999;
TODD R. WHEAR; CAROLYN J.
WHEAR; MARIANNE WHEAR
ANTHONY; SCOTT J. WHITTEN AND
MICHELLE L. WHITTEN, AS CO-
TRUSTEES OF THE SCOTT J. AND
MICHELLE L WHITTEN FAMILY
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roj P47A vez
TRUST, ESTABLISHED UNDER THE
SCOTT J. AND MICHELLE L.
WHITI'EN FAMILY TRUST
AGREEMENT DATED MARCH 11,
2009; LARRY L. WILSON II, TRUSTEE
OF THE LARRY L. WILSON II LIVING
TRUST DATED DECEMBER 17, 2014;
HANS J. WINTSCH AND HEIDI L.
WINTSCH, TRUSTEES OF THE
WINTSCH FAMILY 1984 TRUST
EXECUTED MARCH 15, 1984; SALLY J.
WOOD, AND JAMES J. WOOD,
TRUSTEES OF THE JAMES J. WOOD
TRUST UNDER DECLARATION OF
TRUST DATED DECEMBER 13, 2012;
AND STEVEN C. ZOLA AND BELINDA
S. ZOLA, TRUSTEES OF THE ZOLA
LIVING TRUST DATED DECEMBER
29, 1998; CAROL E. FOSSE, TRUSTEE,
THE CAROL E. FOSSE TRUST DATED
MAY 8, 1998; RPT PROPERTIES, L.P., A
CALIFORNIA LIMITED
PARTNERSHIP; JOHN FRANZIA, JR.
AND MARY LYNNE FRANZIA,
TRUSTEES OF THE JOHN AND MARY
LYNNE FRANZIA TRUST; PAMELA K.
MCNAY, SUCCESSOR TRUSTEE OF
THE JOHN W. MCNAY AND PAMELA
K. MCNAY REVOCABLE INTERVIVOS
TRUST-SURVIVING SPOUSKS TRUST
U/T/A DATED DECEMBER 18, 1998;
AND BARBARA J. SOURIKOFF,
TRUSTEE OF THE BARBARA J.
SOURIKOFF REVOCABLE TRUST,
U.T.D 29 JULY 2008,
Res ondents.
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MD 194 7A e
CLAUDETTE D. VOGEL, TRUSTEE OF No. 81424
THE VOGEL FAMILY TRUST UNDER
AGREEMENT DATED OCTOBER 25,
2016,
Appellant,
vs.
THE MARLA BAY PROTECTIVE
ASSOCIATION; 610 LAKESHORE LLC,
A NEVADA LIMITED LIABILITY
COMPANY; 650 LAKESHORE LLC, A
NEVADA LIMITED LIABILITY
COMPANY; JOHN F. AHERN AND
JUDITH W. AHERN, TRUSTEES OF
THE JOHN F. AHERN FAMILY TRUST
UTD JULY 13, 1983; RILEY M.
BECKETT AND JANE A. BECKETT, AS
TRUSTEES OF THE BECKETT
FAMILY 1994 TRUST, DATED
DECEMBER 7, 1994; CHARLES D.
BLOCH AND CAROL A. BLOCH, CO-
TRUSTEES OF THE CHARLES D.
BLOCH AND CAROL A. BLOCH
REVOCABLE LIVING TRUST, DATED
APRIL 14, 2000; BARBARA BOUCKE,
AS TRUSTEE, OR THE SUCCESSOR
TRUSTEE OR, TRUSTEES, U/A/D
NOVEMBER 15, 1990, AS AMENDED,
CREATING THE BARBARA BOUCKE
SEPARATE PROPERTY TRUST;
JOSEPH T. BREEZE AND
CONSTANCE T. BREEZE, HUSBAND
AND WIFE AS COMMUNITY
PROPERTY WITH RIGHT OF
SURVIVORSHIP; C. JOEL CASBURN
AND C. LYNN CASBURN; DARRELL F.
CHAMPION AND JOY H. CHAMPION
TRUST, UNDER INSTRUMENT
DATED MARCH 27, 2012; MICHAEL
CHILCOAT AND CHERYL CHILCOAT,
HUSBAND AND WIFE AS
COMMUNITY PROPERTY WITH THE
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OF
NEVADA
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10.1 1947A
RIGHT OF SURVIVORSHIP;
CHARMAYNE L. ZUCKER, STEVEN F.
PETERSEN AND L. ROBERT LEGOY,
JR., AS CO-TRUSTEES OF THE CLC
FAMILY TRUST, DATED APRIL 15,
2008; CHARLES M. CORSIGLIA, SOLE
TRUSTEE OF THE NANCY M.
CORSIGLIA LIVING TRUST;
SCHUYLER HAMILTON EARL, II,
TRUSTEE OF THE SCHUYLER H.
EARL II LIVING TRUST DATED
9/13/88; NANCY RUTH PAULSON
EDMUNDSON AND EDWARD A.
WHITE AND PATRICIA P. WHITE, AS
TRUSTEES OF THE WHITE FAMILY
TRUST U/A DTD. JUNE 2, 1999; DARIN
G. FMN, AN UNMARRIED MAN AS
HIS SOLE AND SEPARATE
PROPERTY; DENNIS B. FARNESI AND
ANA T. FARNESI, AS CO-TRUSTEES
OF THE DENNIS B. AND ANA T.
FARNESI REVOCABLE TRUST DATED
APRIL 10, 1992, AND RESTATED
JUNE 17, 2004; SCOTT FINK AND
KATHY KLEIN, TRUSTEES OF THE
SCOTT FINK AND KATHY KLEIN
LIVING TRUST DATED 12-9-91; JOHN
FINLEY; JEANNE FINLEY; JOSEPH
FINLEY; JANE FINLEY; DEEANN
FULSTONE, TRUSTEE OF THE
DEEANN FULSTONE 2010 TRUST,
DATED FEBRUARY 18, 2010; DONNA
HAWKSFORD, AS TRUSTEE OF THE
DONNA HAWKSFORD TRUST, DATED
JULY 9, 2008; SCOTT H. HILKENE,
TRUSTEE OF THE SCOTT H.
HILKENE REVOCABLE TRUST,
DATED MAY 11, 1993; SARAH V.
ANAYA, TRUSTEE OF THE SARAH V.
ANAYA TRUST DATED DECEMBER
31, 2003; F. SCOIT HINDES AND
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KII I947A
NANCY NELSON HINDES, TRUSTEES
OF THE F. SCOTT HINDES AND
NANCY NELSON HINDES 2012
RESIDENTIAL PROPERTY TRUST,
DATED SEPTEMBER 24, 2012; PAUL
M. HWANG AND JUDY FUJII-HWANG,
HUSBAND AND WIFE; AUDREY J.
LAMPERT AS SOLE TRUSTEE OF THE
LAMPERT FAMILY TRUST, DATED
JULY 23, 2008; JOSHUA DEMPSEY
LAMPERT; MARIANNE FULSTONE
LEINASSAR; ALAN SCOTT
LEINASSAR; DONALD SAMUEL
LOBATO; ANDREW CURTIS
LUCCHESI; MARLA BAY, LLC, A
NEVADA LIMITED LIABILITY
COMPANY; JOHN A. MCQUIRK AND
CAROL A. MCQUIRK, AS TRUSTEES
OF THE MCQUIRK FAMILY 1999
TRUST DATED MAY 13, 1999;
ELIZABETH A. NELSON, TRUSTEE OF
THE NELSON REVOCABLE TRUST
CREATED OCTOBER 5, 2006; PHYLLIS
T. PIKE, AS TRUSTEE UNDER THE
ROY AND PHYLLIS PIKE FAMILY
TRUST AGREEMENT DATED
DECEMBER 13, 2007; LARRY B.
PILGRIM AND TONI M. PILGRIM AS
CO-TRUSTEES OF THE LT PILGRIM
REVOCABLE TRUST DATED AUGUST
4, 2015; ROLAND E. RENDE AND
PALMINA M. RENDE, AS CO-
TRUSTEES OF THE RENDE FAMILY
TRUST, U/A DATED SEPTEMBER 9,
1983; MILTON E. RIGHETTI AND
HOPE RIGHETTI, TRUSTEES OF THE
MILTON & HOPE RIGHETTI 2016
TRUST, UID APRIL 11, 2016;
NICHOLAS D.E. ROSSI, JR. AND
DEBRA A. ROSSI, AS CO-TRUSTEES
OF THE NICHOLAS D.E. ROSSI, JR.
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FAMILY TRUST AGREEMENT DATED
APRIL 26, 1996, AS AMENDED AND
RESTATED; GARRETT D. SCHWARTZ
AND NITA S. SCHWARTZ; SCOTT M.
SMITH AND PIPER L SMITH, CO-
TRUSTEES OF THE SCOTT M. AND
PIPER L. SMITH 2015 REVOCABLE
TRUST DATED MAY 18, 2015; JOHN
STEPHANS AND MARY STEPHANS,
TRUSTEES OF THE STEPHANS
LIVING TRUST DATED DECEMBER
14, 2006; CATHY J. STEWART,
TRUSTEE OF THE CATHY J.
STEWART TRUST, DATED
NOVEMBER 17, 2010; DONALD R.
SWICKARD, TRUSTEE OF THE DON
SWICKARD FAMILY TRTJST DATED
AUG. 15, 1987; GLORIA JANIS LEE,
TRUSTEE OF THE JAN LEE
SEPARATE PROPERTY REVOCABLE
TRUST; MATTHEW TILL; JAMES S.
VOORHEES AND JULIE E.
VOORHEES, TRUSTEES OF THE
VOORHEES FAMILY TRUST, DATED 3
DECEMBER, 2009; CHARLES J. VOSS
AND MARTHA L. VOSS, TRUSTEES
OF THE VOSS FAMILY TRUST,
DATED MAY 5, 2016; ROBERT E.
WHEAR AND TWYILA S. WHEAR, AS
CO-TRUSTEES OF THE ROBERT E.
WHEAR OREGON RESIDENCE TRUST
AGREEMENT •DATED APRIL 12, 1999;
TODD R. WHEAR; CAROLYN J.
WHEAR; MARIANNE WHEAR
ANTHONY; SCOTT J. WHITTEN AND
MICHELLE L WHITTEN, AS CO-
TRUSTEES OF THE SCOTT J. AND
MICHELLE L. WHITTEN FAMILY
TRUST, ESTABLISHED UNDER THE
SCOTT J. AND MICHELLE L.
WHITTEN FAMILY TRUST
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OF
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101 F9IA cep
AGREEMENT DATED MARCH 11,
2009; LARRY L. WILSON II, TRUSTEE
OF THE LARRY L. WILSON II LIVING
TRUST DATED DECEMBER 17, 2014;
HANS J. WINTSCH AND HEIDI L.
WINTSCH, TRUSTEES OF THE
WINTSCH FAMILY 1984 TRUST
EXECUTED MARCH 15, 1984; SALLY J.
WOOD, AND JAMES J. WOOD,
TRUSTEES OF THE JAMES J. WOOD
TRUST UNDER DECLARATION OF
TRUST DATED DECEMBER 13, 2012;
AND STEVEN C. ZOLA AND BELINDA
S. ZOLA, TRUSTEES OF THE ZOLA
LIVING TRUST DATED DECEMBER
29, 1998; CAROL E. FOSSE, TRUSTEE,
THE CAROL E. FOSSE TRUST DATED
MAY 8, 1998; RPT PROPERTIES, L.P., A
CALIFORNIA LIMITED
PARTNERSHIP; JOHN FRANZIA, JR.
AND MARY LYNNE FRANZIA,
TRUSTEES OF THE JOHN AND MARY
LYNNE FRANZIA TRUST; PAMELA K.
MCNAY, SUCCESSOR TRUSTEE OF
THE JOHN W. MCNAY AND PAMELA
K. MCNAY REVOCABLE INTERVIVOS
TRUST-SURVIVING SPOUSES TRUST
U/TIA DATED DECEMBER 18, 1998;
AND BARBARA J. SOURIKOFF,
TRUSTEE OF THE BARBARA J.
SOURIKOFF REVOCABLE TRUST,
U.T.D 29 JULY 2008,
Res • ondents.
ORDER REVERSING IN PART,
VACATING IN PART, AND REMANDING
These are consolidated appeals from a district court judgment
of dismissal and an award of attorney fees. Ninth Judicial District Court,
Douglas County; Thomas W. Gregory, Judge. Appellant Claudia E. Vogel,
SUPREME COURT
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10) IWA meo
as trustee for the Vogel Family Trust Under Agreement Dated October 25,
2016 (the trust) and respondents dispute whether the trust or the Marla
Bay Protective Association (MBPA) holds fee simple title to land that sits
west of the western lot line of lots 11 and 12 in Block A (collectively, the
property) of the Marla Bay residential subdivision at Zephyr Cove.
The district court dismissed the instant suit based on issue
preclusion. In the early 1960s, T. H. Borla and others who owned parcels
in the same subdivision as the property (collectively, the Borla plaintiffs)
sought an injunction against the property's then-owners, the Gustafsons.
The injunction would have prevented the Gustafsons from maintaining
railings and fences across their property that interfered with the Borla
plaintiffs alleged easement or license to access the sandy portion of the
property east of the Gustafsons' fence, between the fence and the
Gustafsons' house. MBPA's grantor, Zephyr Cove Properties, Inc., was not
a party to the litigation. The district court denied the injunction, rejected
the Borla plaintiffs' easement and license claims, and "ORDERED,
ADJUDGED and DECREED" as follows:
1. That the prayer by the plaintiffs to declare an
irrevocable easement or oral license in their favor
to the use of a certain portion of the sand beach
which lies within the lot lines of defendants be, and
the same hereby is, denied.
2. That the prayer by the plaintiffs that the
defendants be enjoined from maintaining their
present railings or fences and from in any manner
preventing plaintiffs from the unhampered use of
the entire beach by virtue of the alleged irrevocable
easement or oral license be, and the same hereby is,
denied.
The availability of issue preclusion is reviewed de novo,
although "[o]nce it is determined that [it] is available, the actual decision to
11
apply it is left to the discretion of the district court." State, Univ. & Cmty.
Coll. Sys. v. Sutton, 120 Nev. 972, 984, 103 P.3d 8, 16 (2004). As relevant
here, issue preclusion attaches only to determinations of issues that were
actually litigated and essential to the judgment. Holt u. Reg'l Tr. Servs.
Corp., 127 Nev. 886, 891, 266 P.3d 602, 605 (2011); see Alcantara v. Wal-
Mart Stores, Inc., 130 Nev. 252, 262, 321 P.3d 912, 918 (2014). Thus, if the
common issue was "necessary to the judgment in the earlier suit, its
relitigation will be precluded." Univ. of Nev. v. Tarkanian, 110 Nev. 581,
599, 879 P.2d 1180, 1191 (1994), holding modified on other grounds by Exec.
Mgrnt., Ltd. v. Ticor Title Ins. Co., 114 Nev. 823, 963 P.2d 465 (1998); see
Restatement (Second) of Judgments § 27 (1982 & Supp. 2021)
("Determinations not essential to the judgment. If issues are determined but
the judgment is not dependent upon the determinations, relitigation of
those issues . . . is not precluded.").
Here, in the findings of fact and conclusions of law supporting
its judgment, the district court stated that the "plaintiffs only rights to the
use of the sand beach are between the lake shore and the front lot lines of
the property owned by the defendants." The district court and the
respondents in this case rely on this statement to support the availability
of issue preclusion, but it was not essential to the district court's judgment.
See Restatement (Second) ofJudgments § 27 (providing that determinations
of issues that are not essential to the judgment "have the characteristics of
dicte); see also Santana-Albarran v. Ashcroft, 393 F.3d 699, 701-05 (6th
Cir. 2005) (rejecting petitioner's argument that collateral estoppel applied
in his favor because, although the immigration judge in his case implicitly
found that petitioner had been continuously present in the United States
for over ten years, such determination was not necessary to answer the
12
question of petitioner's status in the country). The limited question in the
Borla litigation was whether the Borla plaintiffs had the right to access the
portion of the sand beach lying east of the fence, which all parties conceded
was at or within the Gustafsons western lot line. As such, whether the
Borla plaintiffs had a right to access land west of the western lot line did
not affect the court's resolution in its judgment of that question.'
Even if issue preclusion is not available, respondents urge that
the district court properly granted summary judgment because there is no
ti genuine dispute as to any material fact." NRCP 56(a). "This court reviews
a district court's grant of summary judgment de novo, without deference to
the findings of the lower court." Wood v. Safeway, Inc., 121 Nev. 724, 729,
121 P.3d 1026, 1029 (2005). The parties here dispute the significance of
three facts, stemming from a segment of the subdivision map: first, that the
western lot line of the subdivision map appears to begin at a point marked
it
meander cor."; second, that the bearing of that line rnatches the bearing of
a meander line on an 1867 United States government survey (the survey)
of the same area; and third, that the western lot line is of approximately the
same length as the meander line on the survey.
'Because this element of issue preclusion is plainly not met, we do not
reach the others. See Five Star Capital Corp. v. Ruby, 124 Nev. 1048, 1055,
194 P.3d 709, 713 (2008) (describing four factors as "necessary for
application of issue preclusiora
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Based on these facts, appellant urges the court to conclude that
the western lot line is a meander line, such that "the water course, and not
the meander line, marks the boundary of the property." Michelsen v.
Harvey, 107 Nev. 859, 862, 822 P.2d 660, 662 (1991); see NRS 321.595.
Respondents maintain that the western lot line is fixed and the property is
not littoral, and the district court agreed, finding that the map reflects the
developer's clear intention to reserve Sand Beach, the land west of the lot
line.
Yet, even considered in tandem, whether the notation of
‘``meander cor.," the indicated bearing of the line, and the line's distance
signify a conveyance to the meander line is a question of disputed material
fact as to the mapper's intent. Depending on context, an intention to convey
to the meander line might be indicated by a graphic representation, such as
a "series of short, straight lines," 11 C.J.S. Boundaries § 14 (2019), parallel
wavy lines, see Sikes v. Moline Consumers Co., 127 N.E. 342, 343-44 (111.
1920) CThe wavy lines indicating the river boundary aforesaid are the ones
commonly used by surveyors and which are usually spoken of as one of the
14
conventional river signs . . . ."), or a "meandering line," Stott v. Stevens, 873
P.2d 380, 382 (Or. Ct. App. 1994) (finding it significant that "the western
boundary of the plat is a meandering line and the southwest corner of the
plat is six feet farther west than the northwestern cornee). Here, by
contrast, the western lot line is none of these, but rather it is a straight,
unbroken line; to its west is an area marked "Sand Beach," and to the west
of that are wavy lines that appear to indicate Lake Tahoe waves.
A mapper's intent might alternatively be indicated by well-
known terms of art, such as in Michelsen, in which the deed described the
property as lb]eginning at the meander corner.. . . [then] . . . on the
meander line to the place of beginning." Michelsen v. Harvey, 107 Nev. 859,
861, 822 P.2d 660, 661-62 (1991); see also Andersen v. Monforton, 125 P.3d
614, 619 (Mont. 2005) (thence meanderine). Determining whether such
terms of art are sufficiently present in this map poses difficult questions of
how the map reflects both historical surveying custom—especially in a lot-
and-block subdivision near the water—and the relevant legal requirements.
See 1929 Nev. Stat., ch. 187, § 2, at 339-40 (establishing that plats were
required to show, "[b]y course and distance, the position of one or more of
the monuments with reference to a known and established corner of the
public-land survey"); Galardi v. Naples Polaris, LLC, 129 Nev. 306, 310, 301
P.3d 364, 367 (2013) (Modernly, courts consult trade usage and custom not
only to determine the meaning of an ambiguous provision, but also to
determine whether a contract provision is ambiguous in the first place.").
For example, although the parties disagree about the significance of the
map's reference to a meander corner—with appellant asserting that its
location matches the origin point for the meander line on the survey, and
respondents countering that it is featured on the map merely to fulfill a
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legal requirement—they have not developed sufficient evidence on the
term's psage in this context to justify a grant of summary judgment.
Additional factual development of this kind may explain if the map is
ambiguous in the first place, and if the map alludes to or references facts
beyond it. See 11 C.J.S. Boundaries § 188 (2019) (describing the standards
for admissible evidence in an action to judicially determine boundaries,
such as an action to quiet title).
Finally, " [i] n the absence of extrinsic evidence, the intent of the
parties to a deed should be ascertained by resort to the rules of construction
of deeds, such as the familiar rule that boundaries are established in
descending order of control." 11 C.J.S. Boundaries § 82 (2019). That order
of control is, "fflirst, natural monuments or objects, like mountains, lakes,
and streams; second, artificial marks, stakes, or other objects . . . ; third,
courses and distances . . . ; lastly, recitals of quantity." Thomsen v. Keil, 48
Nev. 1, 8, 226 P. 309, 311 (1924) (quoting United States v. Redondo Dev. Co.,
254 F. 656, 658 (8th Cir. 1918)). In this case, it is unclear whether the map's
depiction of a sand beach as to the west of a boundary line originating at a
meander corner is consistent with the real-world locations of the beach and
the corner in the late 1920s, and to the extent there is any inconsistency,
the rules of construction may clarify intent.
In sum, given the map's visual configuration and the absence of
an explicit reference to a "meander line," determining the mapper's intent
requires additional factual development. Because issue preclusion is not
available to respondents and questions of disputed material fact remain,
the district court erred by dismissing the suit and likewise by awarding
attorney fees to respondents. Accordingly, we reverse the district court's
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dismissal of the underlying suit, vacate the award of attorney fees, and
remand to the district court for proceedings consistent with this order.
It is so ORDERED.
J.
Cadish
J.
Pickering
Herndon
cc: Hon. Thomas W. Gregory, District Judge
David Wasick, Settlement Judge
Ailing & Jillson, Ltd.
Hopkins & Carley, ALC
Feldman Thiel, LLP
Law Offices of Thomas J. Hall
Douglas County Clerk
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10) 15\77A edlgto
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