Allen v. State

          Appeal from the District Court Garfield County District Court, Water Division 5, Case No. 14CW3021 Honorable James B. Boyd, Water Judge

          Attorneys for Plaintiff-Appellant6 Dufford, Waldeck, Milburn & Krohn, L.L.P. Nathan A. Keever Grand Junction, Colorado

          Attorneys for Defendant-Appellees State of Colorado and Colorado Court of Appeals: Philip J. Weiser, Attorney General Patrick L. Sayas, Senior Assistant Attorney General Denver, Colorado

          Attorneys for Defendant-Appellee Mesa County Land Conservancy, Inc.: Berg Hill Greenleaf & Ruscitti, LLP Peter D. Nichols Josh A. Marks Boulder, Colorado

          Attorneys for Appellee Division Engineer, Water Division 5: Philip J. Weiser, Attorney General Paul L. Benington, First Assistant Attorney General Denver, Colorado

          No appearance on behalf of Margaret V. Morton or Larry L. Stevens.

          OPINION

          JUSTICE GABRIEL

         ¶1 This case concerns whether a water court has jurisdiction to consider a claim for inverse condemnation alleging a judicial taking of shares in a mutual ditch company. The water court dismissed plaintiff-appellant Sam Allen's inverse condemnation claim, concluding that his claim was "grounded in ownership and the conveyance of that ownership, not use," and therefore the claim was not a water matter within the exclusive jurisdiction of the water court. We agree and thus affirm the water court's dismissal order.

         I. Facts and Procedural History

         ¶2 The present dispute involves a ranch in Mesa County. The United States, acting through the Farmers Home Administration (the "FmHA"), acquired title to the ranch, including 140 acres of ranchland, certain decreed water rights, and nine shares of capital stock in Big Creek Reservoir Company, a mutual ditch company. Several years later, the FmHA granted a deed of conservation easement to Mesa County Land Conservancy, Inc. The easement was recorded and provided that "[a]ll water rights held at the date of this conveyance shall remain with the land." Allen later purchased the ranch, the decreed water rights, and the ditch company shares from the FmHA.

         ¶3 Thirteen years later, Allen sold the ranch and the decreed water rights to a third party, but he did not include the ditch company shares in the sale. Mesa County Land Conservancy then filed suit for declaratory and injunctive relief, alleging that Allen had violated the terms of the conservation easement by attempting to sever the shares from the land. The district court ultimately issued a permanent injunction requiring Allen to convey the shares to the purchaser and prohibiting Allen from severing those shares from the property. A division of the court of appeals affirmed, Mesa Cty. Land Conservancy, Inc. v. Allen, 2012 COA 95, ¶ 43, 318 P.3d 46, 57, and we denied Allen's petition for a writ of certiorari, Allen v. Mesa Cty. Land Conservancy, Inc., No. 12SC533, 2013 WL 4008745, at *1 (Colo. Aug. 5, 2013).

         ¶4 Thereafter, Allen filed the present action against defendants-appellees (collectively, "defendants") in the water court. As pertinent here, Allen sought just compensation for an alleged loss of property rights, claiming that the division's ruling in the Mesa County Land Conservancy action amounted to a judicial taking of his interest in the ditch company shares.

         ¶5 Defendants moved to dismiss Allen's complaint pursuant to C.R.C.P. 12(b)(1) and 12(b)(5), asserting, as pertinent here, that the water court lacked subject matter jurisdiction over Allen's complaint. In a detailed and thorough written order, the water court ultimately agreed with defendants and dismissed Allen's complaint for lack of subject matter jurisdiction. The court began by noting that water courts have exclusive jurisdiction over "water matters." It then observed that this court has explained that "water matters" are matters relating to the use of water rights (as distinct from actions concerning the ownership of such rights) and that such matters include applications for initial decrees, actions seeking declarations regarding the scope of use allowed by existing water rights, and declaratory judgment actions to determine what properties are subject to the requirements of water decrees. The water court concluded that ...