¶ 21. dissenting. This is the kind of case that makes the law look trivial, caught up in technicalities, and unable to bring a just result to a dispute that has no understandable purpose. Although plaintiffs have provided the Clarks with a brand new convenient road to reach their lighthouse, the Clarks insist on the right to drive to their lighthouse through their neighbors’ back yards, reducing their privacy and access to Lake Champlain. As far as I can determine, they insist on this right for no reason other than that they have had it in the past and are at odds with their neighbors. If we were forced by clear law to reach this unfortunate result, I would go along with the majority decision. But, in fact, the majority has created a rigid, unnecessary and unrealistic formulation of the governing law. Thus, I respectfully dissent from a decision that relies on the wrong reason to reach the wrong result.
*335¶ 22. Over thirty years ago, plaintiffs’ predecessor-in-interest unsuccessfully defended against the Clarks’ suit claiming an easement across the land now held by plaintiffs. Clark v. Aqua Terra Corp., 133 Vt. 54, 329 A.2d 666 (1974). Even though this Court’s affirmance in that case did not decide whether the easement was created by necessity or prescription, the majority concludes in the present case that plaintiffs are now precluded from resolving that question. According to the majority, plaintiffs’ predecessor should have somehow insisted that the nature of the easement be resolved in the previous action, even though no interest of the parties turned on the question at the time and the predecessor’s position was that no easement existed. The result is that plaintiffs are now unfairly foreclosed from resolving the issue, a resolution that is likely to give plaintiffs the remedy they seek — relocation of the Clarks’ easement to a location convenient to all parties.
¶23. The majority has relied upon an overbroad and rigid formulation of claim preclusion, well beyond the purpose of the doctrine and the requirements of our precedents. I agree with the majority that Aqua Terra conclusively established the Clarks’ possession of an easement, but I disagree that the decision conclusively established whether the easement was created by necessity or prescription or both. Nor can I agree that plaintiffs somehow admitted that the Clarks have a right of way only by prescription.8 Our prior decision relied on both theories. In this case, plaintiffs now seek to establish which theory is controlling. Because plaintiffs’ current cause of action is different from that in Aqua Terra, I would reverse the superior court’s summary judgment ruling in favor of the Clarks.
¶24. Further, on the merits, I would conclude that the undisputed facts demonstrate that the easement was created by necessity and that such easements may be relocated by the servient owner upon a demonstration that the relocation will not lessen the utility of the easement, increase the burden on the *336easement owner, or frustrate the purpose for which the easement was created. Accordingly, I would remand for the court to consider whether plaintiffs’ proposed relocation meets these requirements.
¶ 25. I begin with the issue of whether plaintiffs’ present action to relocate the Clarks’ easement is barred by claim preclusion. Res judicata or claim preclusion bars a party from instituting a subsequent action “where the parties, subject matter and the causes of action are identical, or substantially so.” Hill v. Grandey, 132 Vt. 460, 463, 321 A.2d 28, 30 (1974). Parties are barred from relitigating claims that were actually raised, but also those “which might properly have been tried and determined” in the previous action. B & E Corp. v. Bessery, 130 Vt. 597, 601, 298 A.2d 544, 546 (1972). Where the defendant from the first proceeding seeks to bring a subsequent action, the preclusion rules are narrower than for a plaintiff bringing a subsequent action. A defendant’s claim is barred if it was a compulsory counterclaim in the first case or if the second action would disturb settled rights. See V.R.C.P. 13(a) (defining compulsory claims); see Restatement (Second) of Judgments § 22 cmt. b (1982) (“[T]he defendant’s failure to allege certain facts either as a defense or as a counterclaim does not normally preclude him from relying on those facts in an action subsequently brought by him against the plaintiff.”). The public policy behind the application of claim preclusion is to ensure an end to litigation. Agway, Inc. v. Gray, 167 Vt. 313, 316, 706 A.2d 440, 442 (1997).
¶ 26. The majority asserts that we cannot now decide plaintiffs’ case because Aqua Terra concluded that the Clarks’ easement is one by prescription, and to revisit the issue now would be contrary to the interests of finality that res judicata protects. I agree with the majority that generally a prior judgment cannot be attacked based on an argument that the judgment was wrong or rested on subsequently overruled law. The situation in this case is different, however, because the question of what type of easement the Clarks hold was not resolved in the prior litigation. I disagree with the majority that Aqua Terra’s reference to an easement by necessity was merely dicta and that the case conclusively established that the Clarks hold an easement by prescription. Indeed, as the trial court in this case found, Aqua Terra called the easement both one of necessity and one by prescription. Because there was never a final determination on the type of the ease*337ment, adjudication of the issue now would not disrupt any settled rights. Nor would consideration of plaintiffs’ case conflict with interests of finality because the holding of Aqua Terra — that the Clarks have an easement across plaintiffs’ land — would remain undisturbed. Plaintiffs are not asserting a new legal theory to alter this Court’s holding in Aqua Terra-, rather, plaintiffs seek to resolve a question that Aqua Terra did not decide.
¶ 27. The labeling of this Court’s discussion of an easement by necessity in Aqua Terra as “dicta” is an example of the overbroad application of claim preclusion. If a court grounds its decision on two theories, either being sufficient to support the result, the labeling of one theory as the “rationale” for the decision and the other as “dicta” is entirely a choice of the reader of the decision, in this case, the majority of this Court. The majority has made that choice to maximize, not minimize, preclusive effect and to deny plaintiffs an opportunity to show that the easement should be found to be one of necessity — a step to bringing this case to a reasonable result. I would take a more narrow approach that ensures that all parties have their day in court at least once; this approach is fully consistent with the purpose of claim preclusion. You can implement that policy only by avoiding labeling of rationales and recognizing each of them.
¶28. Ultimately, the majority relies upon the conclusion that plaintiffs’ predecessor could have raised easement by necessity in the prior case and they are, therefore, barred by claim preclusion from raising it now. First, it is important to accurately state the proper standard for claim preclusion. The majority derives the “could have” rule from the memorandum decision of Merrilees v. Treasurer, 159 Vt. 628, 624, 618 A.2d 1314, 1316 (1992) (mem.), but acknowledges, although only in a footnote, that we have often stated the rule in terms of what the litigant “should have” done. See also Lamb v. Geovjian, 165 Vt. 375, 380, 683 A.2d 731, 734 (1996) (a party is foreclosed from litigating claims that “were or should have been raised in previous litigation” (quotation omitted and emphasis added)). The majority acts as if this terminology is synonymous, but it is clearly not. As the Second Circuit Court of Appeals explained, the “‘could have been’ language of the third requirement is something of a misnomer.” Pike v. Freeman, 266 F.3d 78, 91 (2d Cir. 2001). The court went on to explain:
The question is not whether the applicable procedural rules permitted assertion of the claim in the first pro*338ceeding; rather, the question is whether the claim was sufficiently related to the claims that were asserted in the first proceeding that it should have been asserted in that proceeding.
Id. This caution is important because this is a case where plaintiffs’ predecessor could have raised an easement-by-necessity defense in the first case, but under no circumstances should it have raised the defense because doing so was totally contrary to its interests.
¶ 29. Second, it is critical to the application of claim preclusion in this case that plaintiffs’ predecessor-in-interest, Aqua Terra Corporation, was the defendant in the prior action, not the plaintiff, and sought to defend against the Clarks’ claim that they held an easement over its property. Most cases of claim preclusion involve a plaintiff who files two successive actions. In a case, such as this one, where the defendant from the first action files a subsequent action, the preclusion rule is more limited. Thus, the defendant’s new claims are not precluded unless the defendant’s success would nullify the original judgment or a statute required the defendant to bring his claim in the first action. Valley View Angus Ranch, Inc. v. Duke Energy Field Servs., Inc., 497 F.3d 1096, 1101 (10th Cir. 2007).
¶ 30. There is no governing statute in this case. Nor are we dealing with a situation where Aqua Terra Corporation was bound to raise a compulsory counterclaim involving easement by necessity; that is, a claim that arose “out of the transaction or occurrence that [was] the subject matter of the opposing party’s claim.” V.R.C.P. 13(a); see Stratton v. Steele, 144 Vt. 31, 34, 472 A.2d 1237, 1239 (1984) (“[F]ailure to raise a compulsory counterclaim will result in a bar to future litigation of the claim under the doctrine of res judicata.”). If Aqua Terra was required to raise easement by necessity, it could have done so only by asserting it as an affirmative defense on the theory that the Clarks could not have had a prescriptive easement if they had an easement by necessity. Asserting that the Clarks’ held an easement by necessity was certainly not a compulsory counterclaim that Aqua Terra was required to bring.
¶ 31. This leaves only the issue of whether allowing plaintiffs to bring the current action “would nullify the initial judgment or would impair rights established in the initial action.” Restatement *339(Second) of Judgments §22(2)(b). Resolving whether the Clarks hold an easement by necessity or prescription would not nullify the holding of Aqua Terra. See Wickenhauser v. Lehtinen, 2007 WI 82, ¶ 38, 734 N.W.2d 855 (explaining that the defendants in the prior action were not barred from asserting a claim in a subsequent action where the second action did not “nullify the first judgment or impair any rights established in that action”). Plaintiffs’ present claim to establish the basis of the easement is an issue that the court never decided. See Plott v. Justin Enters., 649 S.E.2d 92, 95-96 (S.C. Ct. App. 2007) (holding that landowner’s prior action for trespass did not bar subsequent declaratory action claim for interference with easement where action for interference in prior case was not decided and was not a compulsory counterclaim).
¶ 32. While the above represents the technical response to the majority’s position, common sense also supports why the prescription rule is designed as it is and limited in cases such as this. For Aqua Terra to have raised easement by necessity as an affirmative defense in the original litigation would have been an act of litigation suicide. Its goal in the prior case was to defeat any easement. Accordingly, in defense of the Clarks’ claim to an easement by prescription, Aqua Terra asserted abandonment and permissive use. If easement by necessity represented an alternative theory by which the Clarks could obtain an easement, it was in Aqua Terra’s interest to suppress that theory not to promote it. Yes, Aqua Terra “could” have responded to an easement-by-prescription claim by arguing that it was really an easement-by-necessity claim. That would have been a surrender, not a defense. Under no circumstances, however, “should” it have made that defense.
¶ 33. One other reason supports this common-sense result. The Clarks prevailed in the original litigation in the trial court exclusively on the theory of prescriptive easement. On appeal, however, they apparently believed that they needed a fallback position and thus argued in this Court that the judgment was also supported by the theory of easement by necessity. This Court picked up the alternative theory and included it in the decision. Thus, in the first litigation, the Clarks were indifferent to which theory would support their easement. In my view, they cannot now argue the inconsistent position — that plaintiffs’ litigation would nullify the earlier judgment or undermine their rights.
*340¶ 34. For the reason stated above, the application of claims preclusion in this case is based on an overbroad statement of the doctrine that, when applied here, defies common sense. Therefore, I would reach the merits.
¶ 35. I turn then to plaintiffs’ contention that the Clarks hold an easement by necessity, not prescription. An easement by necessity is created “when the division and transfer of commonly owned land results in a parcel left entirely without access to a public road.” Myers v. LaCasse, 2003 VT 86A, ¶ 16, 176 Vt. 29, 838 A.2d 50. “In such a case, the grantee of the landlocked parcel is entitled to a way of necessity over the remaining lands of the common grantor or his successors in title.” Id. (quotation omitted). Public policy supports the creation of easements by necessity because it means land will not be left inaccessible and unused. Id. “[A]n easement by necessity arises at the instant the original property is divided.” Berge v. State, 2006 VT 116, ¶ 15, 181 Vt. 1, 915 A.2d 189. The easement remains in effect so long as the necessity exists. Id. ¶ 6. Once a public way is available for access to land, the way of necessity ceases. Traders, Inc. v. Bartholomew, 142 Vt. 486, 493, 459 A.2d 974, 979 (1983). In contrast, a prescriptive easement is created when one demonstrates “open, notorious, hostile, and continuous use for 15 years.” Guilbault v. Bowley, 146 Vt. 39, 41, 498 A.2d 1033, 1034 (1985); see Restatement (First) of Property § 457 (1944) (easement created if use is adverse and continuous for period of prescription). If an easement by necessity already exists, no prescriptive easement can ever arise because the use is permissive and not hostile. Guilbault, 146 Vt. at 41, 498 A.2d at 1034 (explaining that permissive use will not “ripen into title no matter how long continued”).
¶ 36. In this case, the undisputed facts are that when the Motts deeded the lighthouse property to the United States in 1857, the only means of land access to the property was over the remaining parcel of the Motts’ land. Thus, when the conveyance divided the property, an easement by necessity was created in the United States. Aqua Terra, 133 Vt. at 56, 329 A.2d at 667. Once the easement by necessity was created, no amount of use could create an easement by prescription because the use was not hostile. See Traders, Inc., 142 Vt. at 493, 459 A.2d at 979 (holding that easement by necessity created upon grant and that following use was not adverse and therefore could not ripen into a prescriptive *341easement). Thus, I would conclude that the Clarks hold an easement by necessity across plaintiffs’ land, and turn to the issue of relocation.
¶ 37. Plaintiffs contend that an easement by necessity may be relocated without the dominant owner’s consent “where the resulting easement is as safe as the original location, the relocation results in a relatively minor change, and landowner’s reasons for moving the easement are substantial.” Soderberg v. Weisel, 687 A.2d 839, 842 (Pa. Super. Ct. 1997). The plaintiffs’ proposal at first glance conflicts with our stated general rule pertaining to easements “that a way, once located, cannot be changed thereafter without the mutual consent of the owners of the dominant and servient estates.” Sargent v. Gagne, 121 Vt. 1, 12, 147 A.2d 892, 900 (1958). We have reiterated this rule several times, but we have also recognized exceptions. See Sweezey v. Neel, 2006 VT 38, ¶ 10, 179 Vt. 507, 904 A.2d 1050 (allowing relocation of deeded easement where consent can be implied from party’s acts and acquiescence); In re Shantee Point, Inc., 174 Vt. 248, 261, 811 A.2d 1243, 1254 (2002) (restating general rule and recognizing exception in cases where the deed signifies an intent to allow relocation). As the rule relates to this case, an important distinction is that our past cases on relocation have involved express easements created by deed. See Sweezey, 2006 VT 38, ¶¶ 2, 10 (reiterating general rule in case of deeded easement); Moore v. Center, 124 Vt. 277, 280, 204 A.2d 164, 166 (1964) (easement established by deed could not be relocated unilaterally once fixed).
¶ 38. For example, in Sweezey, we considered whether to adopt a Restatement rule that allows relocation by the servient owner, subject to certain restrictions. The Restatement provides that servient owners may make reasonable changes in the location of an easement if the changes do not “(a) significantly lessen the utility of the easement, (b) increase the burdens on the owner of the easement in its use and enjoyment, or (c) frustrate the purpose for which the easement was created.” Restatement (Third) of Property: Servitudes §4.8 (2000). The Restatement explains that it is sound policy because it allows owners of servient estates to maximize use of their land. Id. §4.8 cmt. f. Although the Restatement rule remains the minority view, several courts have applied a similar test and allowed relocation of easements, even when the dominant owner does not agree, if several factors are met. See, e.g., M.P.M. Builders, LLC v. Dwyer, *342809 N.E.2d 1053, 1057-58 (Mass. 2004) (adopting Restatement and allowing servient owner to relocate express easement if the change does not lessen the utility of the easement, increase the burden on owner of the easement, or frustrate the purpose of the easement); Kruvant v. 12-22 Woodland Ave. Corp., 350 A.2d 102, 119 (N.J. Super. Ct. Law Div. 1975) (holding that servient estate could relocate prescriptive easement if entry point did not change, and subject to dominant owner’s approval, “which shall not be unreasonably withheld”); Soderberg, 687 A.2d at 842 (allowing servient estate to relocate a prescriptive easement “where the resulting easement is as safe as the original location, the relocation results in a relatively minor change, and landowner’s reasons for moving the easement are substantial”). We declined to adopt the Restatement rule in Sweezey, explaining that this rule would cause uncertainty, increase litigation, and confer a windfall on the servient owner to the detriment of the dominant owner. 2006 VT 38, ¶¶ 24-25.
¶ 39. While requiring mutual agreement to relocate makes sense in cases involving express easements, relocation of easements by necessity presents a different question. An express easement is created through bargaining and the agreement of the parties, whereas an easement by necessity is created pursuant to public policy concerns about encouraging the use of land. See Traders, Inc., 142 Vt. at 494-95, 459 A.2d at 979-80 (explaining that because an easement by necessity is based on social considerations, its scope should “be coextensive with the reasonable needs, both present and future, of the dominant estate,” and that the location should not create an unreasonable burden on the servient estate). Furthermore, unlike an express easement, easements by necessity will cease once a public way is available for access to land.9 Id. at 493, 459 A.2d at 979. Given these differences, the question is whether, and under what circumstances, the servient owner can relocate an easement by necessity without the consent of the dominant owner.
¶ 40. The South Carolina Court of Appeals addressed this exact issue in Goodwin v. Johnson, 591 S.E.2d 34 (S.C. Ct. App. 2003). In that case, the servient owners requested the court’s permission to relocate an easement by necessity to a different part of their *343property because the existing easement was very close to their house and presented a danger to their children and pets. The court recognized the general rule that once an easement is fixed in a location it cannot be altered without the consent of both landowners. Id. at 36. The court explained, however, that this traditional rule had been applied to express easements and that easements created by necessity are different because the location is not fixed by the parties’ agreement. The court held that it had equitable power to relocate an easement created by necessity. The court adopted the factors listed in the Restatement, explaining that relocation was available if it did not lessen the utility of the easement, increase the burden on the easement owner, or frustrate the purpose for which the easement was created. Id. at 38.
¶ 41. I think that the conclusion in Goodwin is logical, protects the interests of the dominant owner, and is in keeping with the public policy behind easements by necessity. Allowing the servient estate to construct an alternate way that does not reasonably interfere with the rights of the dominant estate protects the dominant owner’s interest in reaching his property, but also allows the servient owner to maximize use of her land. This outcome does not harm the dominant owner and is essentially the same as if a public right-of-way had been laid down that destroyed the original easement by necessity.
¶42. In sum, because I disagree with the majority’s unwarranted expansion of claim preclusion, I would remand the case to the superior court for it to consider whether plaintiffs’ newly constructed road meets the above-listed criteria and may be relocated. This would allow plaintiffs the opportunity to bring a just end to this dispute. I dissent.
In response to a supplemental memorandum of law filed by the Clarks, plaintiffs explained in their own memorandum of law that they were not trying to eliminate the easement — rather, they sought to move it — and they were not trying to upset the Aqua Terra decision. This argument was, of course, in response to the Clarks’ claims to the contrary. The memorandum was not an admission that Aqua Terra rested solely on a rationale that the easement was by prescription, as claimed by the majority.
In this ease, the newly constructed road does not automatically destroy the easement by necessity because it is a private, not public, road.