(concurring in part; dissenting in part).
¶ 23. Although neither Czyzewski nor Harvey had any knowledge or suspicion that the fence line between their two properties did not represent the true lot line, the majority opinion holds that the settlement of Czyzewski’s prior claim against Harvey for failure to provide lateral support precludes Kruckenberg's present action for trespass and for a declaratory judgment as to the location of the lot line. I respectfully dissent from that holding.
*440¶ 24. Our supreme court has said that although the purposes underlying claim and issue preclusion are important, the courts do not blindly apply the doctrine. Sopha v. Owens-Corning Fiberglass Corp., 230 Wis. 2d 212, 235, 601 N.W.2d 627 (1999).1 "Wisconsin law does not treat [claim/issue preclusion] as an ironclad rule which must be implacably applied whenever its literal requirements are met, regardless of any countervailing considerations." Id. (citation omitted). In my judgment, the majority opinion represents an unduly rigid application of claim or issue preclusion. I would hold that the application of the doctrine against Kruckenberg does not pass the fairness test of the inquiry. See Precision Erecting, Inc. v. M&I Marshall & Isley Bank, 224 Wis. 2d 288, 304, 592 N.W.2d 5 (Ct. App. 1998).
¶ 25. Czyzewski's complaint against Harvey in the prior action was for lateral support, not a challenge of the location of the lot line. Similarly, Harvey's defense of the action did not dispute the location of the lot line. When the parties came to an agreement as to how Harvey could provide lateral support, the parties commendably settled the action short of trial.
¶ 26. One of the factors that bears upon a fairness determination in a claim or issue preclusion setting is whether there are significant differences in the quality or extensiveness of the two proceedings. Teriaca v. Milwaukee Employees' Ret. Sys., 2003 WI App 145, ¶ 13, 265 Wis. 2d 829, 667 N.W.2d 791. Here, the two proceedings were markedly different. The former was an action for lateral support in which the location of the lot line was never in dispute. Thus, the nature, quality *441and extensiveness of the prior proceeding did not address the location of the lot line in any meaningful way. However, in the instant action, the location of the lot line is the core dispute.
¶ 27. The actual, but unspoken, message of the majority opinion is that Czyzewski should have taken the case to trial to litigate the location of the lot line even though that matter was not in dispute and even though the parties had settled the only matter in dispute. Thus, the majority opinion produces a mock trial over a nonissue that neither party desired, together with the related expenditure of time, effort and money.
¶ 28. Another of the factors bearing upon a fairness determination in a claim or issue preclusion setting is whether there are matters of public policy and individual circumstances involved such that it would render the application of the doctrine fundamentally unfair, including whether the party against whom preclusion is sought had an adequate opportunity or incentive to obtain a full and fair adjudication in the initial action. Id. Reduced to its essence, the majority opinion penalizes Kruckenberg for Czyzewski's decision to settle the case. However, the law favors settlement over full-blown litigation. "Wisconsin courts look with great favor upon settlements of litigation." Radlein v. Indus. Fire & Cas. Ins. Co., 117 Wis. 2d 605, 622, 345 N.W.2d 874 (1984). The majority's unforgiving application of claim or issue preclusion strikes a blow against this sound policy. Once Harvey agreed to provide lateral support to Czyzewski's property producing a settlement of the lawsuit, neither Czyzewski nor Harvey had any incentive to continue the litigation over a matter not in dispute.
*442¶ 29. Wisconsin's public policy favoring settlements and the individual circumstances under which the prior action was settled tell me that it is unfair to apply claim or issue preclusion against Kruckenberg in this case. Under the majority opinion, litigants must now be wary of settlement, lest an uncontested issue that could have been litigated might come back to haunt. I respectfully dissent.2
In Sopha v. Owens-Corning Fiberglass Corp., 230 Wis. 2d 212, 601 N.W.2d 627 (1999), the supreme court was addressing claim preclusion. However, the same principles would apply in an issue preclusion setting.
However, I fully agree with the majority's application of claim preclusion as to Kruckenberg's claim for lateral support.