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DANA, J., with whom ROBERTS, and RUDMAN, JJ., join, concurring. [¶21] This declaratory judgment action was brought by the Markleys in order to achieve some measure of certainty with regard to the boundary of their property. Their neighbors, the Semles, also asked the court to determine the true boundary line between the parties' properties. After considering the extensive evidence presented during the three-day trial, the court reluctantly concluded that it was unable to adequately locate the boundary between the adjoining lands and thus declined to declare the boundary as requested by the parties. [¶22] I agree that the court was not obligated to declare the boundary between the parties' properties in the absence of sufficient proof of such a boundary. I write separately, however, to clarify that in my opinion, nothing prevents the Markleys or the Semles from bringing a future action to determine the property boundary despite their failure to adequately establish the boundary in the present action. In other words, the court's failure to find for either the Markleys or Semles should have no issue or claim preclusion effect on future attempts to establish the boundary should further evidence tending to establish a certain boundary become available. [¶23] The doctrine of res judicata, or claim preclusion, "serves the critical policies of judicial economy, the stability of final judgments, and fairness to litigants," Blance v. Alley, 1997 ME 125, ¶ 4, 697 A.2d 828, 829 (quotation omitted), by barring "the relitigation of issues that were tried, or that may have been tried, between the same parties or their privies in an earlier suit on the same cause of action." Id. (quotations omitted). A valid and final judgment in an action brought to declare rights or other legal relations of the parties is conclusive in a subsequent action between them as to the matters declared, and in accordance with the rules of issue preclusion, as to any issues actually litigated by them and determined in the action. Restatement (Second) of Judgments § 33 (1982) (emphasis added). In the present case the court was unable to make a declaration and the essential issue in dispute plainly was not determined in the action. The parties instead were left in a legal limbo. This case is distinguishable from the typical quiet title action, in which a party asserts title to a parcel of land superior to another and accepts the risk of failing to persuade the factfinder of the quality of the title. See Blance v. Alley, 330 A.2d 796 (Me. 1975) (in a quiet title action, even if plaintiff can prove property boundary, he must also establish his title to the property to prevail). The Markleys did not come to the court to obtain that which they claimed was theirs, but rather, in the face of uncertainty, to ask the court for a judicial determination of what was theirs. Of the three critical policies embodied by the doctrine of res judicata, only the policy of judicial economy would be served by a strict application of the doctrine in these circumstances. Certainly there is nothing stable in the current judgment of the court, and there would be no unfairness to the litigants in allowing them future opportunities to establish the boundary between their properties. The determination of the legal relationships between parties is a crucial function of the judiciary and the circumstances of this case should not preclude the Markleys or the Semles from obtaining such a determination in the future.FOOTNOTES******************************** {1} The Markleys acknowledged in their appellate brief that "[t]he nature of the dispute between Plaintiffs and Defendants is such that there is no dispute as to what the boundaries of their respective properties are, rather the dispute is based upon where those boundaries are located on the face of the earth." {2} For instance, Plaintiffs' Exhibit 20 consisted of more than 120 deeds from the Markleys' chain of title, the Semles' chain of title, and their abutting landowners' chains of title. This multiplicity of deeds was necessitated by the fact that the Markleys' deed, the Semles' deed, and many of their adjoining landowners' deeds are "abutter's deeds"-deeds that do not set forth precise distances or bearings but rather describe the limits of property in terms of the adjoining parcels of land. To locate property described in an abutter's deed, one must use extrinsic evidence (e.g., adjoining landowners' deeds) to determine the locations of the adjoining parcels. Dunlap acknowledged that to formulate his opinion as to the location of the boundary line, he had to review "[a] substantial number of deeds for the subject parcel and for all the adjoining parcels within a very large radius." {3} Cf. Cutts v. Casey, 180 S.E.2d 297, 307-08 (N.C. 1971) (observing that in a trespass action in which both parties claim title to the land involved, one party's failure to carry his or her burden of proof does not relieve the other party of the burden to show title in himself or in herself, and noting that "[t]here are cases involving a disputed title to land in which neither party can carry the burden of proof"); Beebe v. Reichert, 108 N.W.2d 804 (Neb. 1961) (affirming trial court's finding that plaintiff's proof failed to establish location of boundary line). {4} Because we hold that the court was not compelled to find that the evidence presented at trial established the location of the common boundary, we need not reach the Markleys' other assignments of error.
Attorney for plantiffs: James A. Hopkinson, Esq. Hopkinson & Abbondanza, P.A. 511 Congress Street, Suite 801 Portland, ME 04101 Attorney for defendants: Richard A. Hull, III, Esq. Levis & Hull, P.A. 409 Alfred Street Park One Eleven Biddeford, ME 04005