IN THE SUPREME COURT OF THE STATE OF NEVADA 

CLAUDETTE D. VOGEL, TRUSTEE OF 

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, COTRUSTEES 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 

No. 81123 

FILED 

DEC 1 7 2021 

ELIZAÐE114 A. BROWN _ 

CLER14)(1UPREIVE COUR 

ByDEPLIWACLE 

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. 

SUPREME COURT 

Of 

NEVADA 

MI I W/ A e 

2 

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 COTRUSTEES 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; 

SUPREME COURT 

OF 

NEVADA 

(01 1947A dalBlai 

3 
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, COTRUSTEES 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 COTRUSTEES OF THE SCOTT J. AND 

MICHELLE L WHITTEN FAMILY 

SUPREME COURT 

OF 

NEVADA 

roj P47A vez 

4 
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. 

SUPREME COURT 

OF 

NEVADA 

MD 194 7A e 

5 
CLAUDETTE D. VOGEL, TRUSTEE OF 

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, COTRUSTEES 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 

No. 81424 

SUPREME COURT 

OF 

NEVADA 

10.1 1947A 

6 
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 

SUPREME COURT 

OF 

NEVADA 

KII I947A 

7 
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 COTRUSTEES 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. 

SUPREME COURT 

OF 

NEVADA 

(0) 1947A cep 

8 
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, COTRUSTEES 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 COTRUSTEES OF THE SCOTT J. AND 

MICHELLE L. WHITTEN FAMILY 

TRUST, ESTABLISHED UNDER THE 

SCOTT J. AND MICHELLE L. 

WHITTEN FAMILY TRUST 

SUPREME COURT 

OF 

NEVADA 

101 F9IA cep 

9 
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 

DE 

NEVADA 

10) IWA meo 

10 
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. WalMart 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 

tigenuine 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 

SUPREME COURT 

Of 

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(0) I947A ofe/44 

13 
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 wellknown 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 lotand-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 

SUPREME COURT 

OF 

NEVADA 

(0) 1947A MOM, 

15 
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 

SUPREME COURT 

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101 t947 A OSP 

16 
J. 

Pickering 

Herndon 

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 

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 

SUPREME COURT 

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10) 15\77A edlgto 

N1177EM:471R