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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Belknap No. 2007-257 HARRY A. SLEEPER v. THE HOBAN FAMILY PARTNERSHIP & a. Argued: June 26, 2008 Opinion Issued: July 25, 2008 Devine, Millimet & Branch, P.A., of Manchester (David P. Eby on the brief and orally), for the petitioner. Matthew J. Lahey, P.A., of Laconia (Matthew J. Lahey on the brief and orally), for the respondents. DALIANIS, J. The petitioner, Harry A. Sleeper, appeals the order of the Superior Court (Smukler, J.) partially granting and partially denying his petition for declaratory judgment. While the trial court ruled that the petitioner had an easement by deed to access Beech Street in Alton for the purpose of using a beach area, it denied his other claims on the ground that they were barred by res judicata. The respondents, The Hoban Family Partnership, John J. Hoban, Patrick J. Hoban and Diane V. Hoban, cross-appeal the trial court's ruling in the petitioner's favor on his easement by deed claim. We affirm the trial court's ruling on the petitioner's claim to an easement by deed, reverse its res judicata ruling, and remand for further proceedings consistent with this opinion.

The record supports the following facts. Beech Street was originally depicted on a plan recorded in 1889 by the Winnipesaukee Land Company. It ran perpendicular from Lake Shore Avenue to the Lake Winnipesaukee shoreline, bisecting Railroad Avenue and ending on Main Street. In 1979, the Town of Alton's board of selectmen released Lake Shore Avenue and the portion of Beech Street that ran from Lake Shore Avenue to Railroad Avenue from all public servitude and interests. The portion of Beech Street that was discontinued became tax lot 76. There is a beach at the end of this lot. The respondents now own tax lot 76, having purchased it in 1991. The deed conveying tax lot 76 to the respondents stated that the lot was conveyed subject to "whatever rights may exist in others to cross and recross and to use the beach area on the shore of Lake Winnipesaukee" and "to a reservation in favor of the Grantors, their heirs and assigns, for the benefit of Tax Lot 36 . . . of access to and use of the said beach area." The respondents also own tax lot 57 on which they have a home. Tax lot 57 borders tax lot 76. The petitioner owns tax lots 36, 55 and 55-1 in Alton. Tax lots 55 and 55-1 run along the shore of Lake Winnipesaukee; tax lot 36 is located a few blocks away from the shore. A portion of tax lot 55 abuts tax lot 76. The petitioner purchased tax lot 36 in 1991 and tax lots 55 and 55-1 in 1998. In 1991, Albert S. and Joan K. Drew, who then owned tax lots 55 and 55-1, brought a quiet title action against respondent John J. Hoban, claiming title under a theory of adverse possession to "the parcel of land adjacent to, and westerly of" their land "with frontage on Lake Winnipesaukee" as shown in a shaded portion of a map submitted with their petition (the shaded area). A portion of Beech Street, including the end of the street on which there is a beach, was included in the shaded area. The court dismissed the Drews' petition, finding that although they had proved twenty years of continuous and uninterrupted use of the shaded area, they had not proved that their use was exclusive. After this decision, the respondents erected a fence at the edge of Beech Street and the Drews' property and posted "no trespassing" signs. Shortly after purchasing the Drews' property, the petitioner removed the fence. The respondents continued to post "no trespassing" signs. In 2005, the petitioner brought the instant petition, seeking, inter alia, a declaration that: (1) he is the rightful owner of Beech Street to the center-line point as it runs along his property; and (2) even if he does not own Beech Street, he may use it to access his property and/or the beach and dock area either because he has an easement to do so or pursuant to RSA 231:43 (Supp. 2007).

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All parties moved for summary judgment. The trial court ruled that the doctrines of res judicata and collateral estoppel barred the petitioner's claims to the portion of Beech Street that had been litigated in the Drews' quiet title action, but ruled that the petitioner's claims to the portion of Beech Street that was not at issue in the Drews' quiet title action were not barred. Because disputed issues of material fact remained, a trial was held. Following the trial, which included a view, the court ruled that, in fact, the doctrine of res judicata barred all of the petitioner's claims to Beech Street other than his claim to have an easement by deed. The court ruled that the deed to the respondents' property created an appurtenant easement, pursuant to which petitioner's tax lot 36 was the dominant estate to be benefited by use of an easement over respondents' tax lot 76 to access the beach area at the end of Beech Street. This appeal and cross-appeal followed. We first examine the petitioner's appeal and then the respondents' cross-appeal. I The petitioner first challenges the trial court's post-trial determination that res judicata barred his claims to ownership of Beech Street as well as his claims to have a right to use the street for access either because of an easement or under RSA 231:43. The applicability of res judicata is a question of law that we review de novo. Meier v. Town of Littleton, 154 N.H. 340, 342 (2006). Res judicata precludes the litigation in a later case of matters actually decided, and matters that could have been litigated, in an earlier action between the same parties for the same cause of action. Id. For the doctrine to apply, three elements must be met: (1) the parties must be the same or in privity with one another; (2) the same cause of action must be before the court in both instances; and (3) a final judgment on the merits must have been rendered in the first action. Id. The petitioner contests elements (1) and (2). The petitioner first contends that the Drew litigation could not act as a bar because he was not in privity with the Drews. Specifically, he asserts that privity did not exist because his interests in their litigation "were not in fact represented and protected." Cook v. Sullivan, 149 N.H. 774, 779 (2003). To the contrary, the petitioner was in privity with the Drews because he was their successor in interest. See Innie v. W & R, Inc., 116 N.H. 315, 316 (1976); see also Taylor v. Sturgell, 128 S. Ct. 2161, 2172 (2008); Restatement (Second) of Judgments

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