Gary SHEEK, Sheek Family Limited Partnership, and Pamsey I. Sheek, Plaintiffs-Appellants
v.
Roger BROOKS, Veryl Goodnight, Ida May Smith, and The James Fenberg Revocable Trust, Defendants-Appellees.
As
Modified on Denial of Rehearing May 28, 2019
Page 1146
Appeal from the District Court, La Plata County
District Court, Water Division No. 7 Case No. 16CW3008,
Honorable Jeffrey R. Wilson, Water Judge
Attorneys
for Plaintiffs-Appellants: Colorado Water & Land Law, LLC,
Amy N. Huff, Durango, Colorado
Attorneys
for Defendants-Appellees Roger Brooks and Veryl Goodnight:
Russell & Pieterse, LLC, Jennifer Russell, Telluride,
Colorado, Kelly R. McCabe, P.C., Kelly R. McCabe, Keenen D.
Lovett, Cortez, Colorado
No
appearance on behalf of Ida May Smith or The James Fenberg
Revocable Trust.
En
Banc
OPINION
HART,
JUSTICE
[¶1]
In 2008, defendant-appellees Roger Brooks and Veryl Goodnight
(together "Brooks") filed an application in the
water court to change the point of diversion of their water
right from the Giles Ditch to the Davenport Ditch. The
application and the required notice published in the local
newspaper misidentified the section and range in which the
Davenport Ditch headgate is located. Both, however, referred
repeatedly to the Davenport Ditch. Brooks successfully moved
to amend the application with the correct section and range
shortly afterward. The water court, finding that "no
person [would] be injured by the amendment," concluded
that republication of the notice was unnecessary.
[¶2]
Eight years later, plaintiff-appellant Gary Sheek filed this
action in the water court, seeking judgment on five claims
for relief: (1) declaratory judgment that Brookss decree was
void for insufficient notice; (2) quiet title to a
prescriptive access easement for the Davenport Ditch,
including ancillary access rights; (3) trespass; (4) theft
and interference with a water right; and (5) a permanent
injunction prohibiting Brooks from continued use of the
Davenport Ditch. After concluding that sufficient notice was
provided, the water court granted Brookss motion for summary
judgment and deemed the trespass and injunction claims moot
in light of that ruling. The court then dismissed the
prescriptive easement claim as well as the theft and
interference claim for lack of subject-matter jurisdiction.
[¶3]
We agree with the water courts conclusion that the published
notice was sufficient. As a result, all of the remaining
claims should have been dismissed for lack of subject-matter
jurisdiction. In other words, the water court should not have
held that the trespass and injunction claims were moot
because it lacked jurisdiction over those claims. We
therefore affirm the judgment of the water court, but on
other grounds.
I. Facts and Procedural History
[¶4]
In October 2008, Brooks filed an application for a change ...