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Sheek v. Brooks

Supreme Court of Colorado

May 6, 2019

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 Brooks’s 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 Brooks’s 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 court’s 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 ...


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