Sheek v. Brooks

          ADVANCE SHEET HEADNOTE May 6, 2019

          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 Fenburg Revocable Trust.

          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 of water right, proposing a change in the point of diversion from the Giles Ditch to the headgate of the Davenport Ditch. The resume notice of this application was published on October 17 in the Dolores Star, then a weekly newspaper in Montezuma County, in accordance with section 37-92-302(3), C.R.S. (2018).

         ¶5 The resume notice stated that Brooks was unable to use his water right because his property was located above the Giles Ditch headgate. Brooks could use his water right, however, if it was diverted from the lateral of the Davenport Ditch that runs through the Brooks property. The resume notice continued: "[a]pplicant proposes changing the point of diversion for their Giles Ditch water right to the headgate of the Davenport Ditch." The resume notice stated that the headgate was located in the NE ¼ of the SE ¼ of Section 13, Township 36N, Range 13W. In total, the published resume notice included the words "Davenport Ditch" five times, once in bold typeface. As required by law, Brooks mailed notice to the owner of the real property underlying the headgate, the James Fenberg Revocable Trust.

         ¶6 Four months later, after the water commissioner requested a map of the property to be irrigated as well as revised coordinates to the Davenport Ditch headgate, Brooks realized that the resume notice had incorrectly stated the headgate's section and range. Brooks filed a motion to amend the application for change of water right, as the correct location is the N.W. ¼ of the SW ¼ of Section 18, Township 36N, Range 12W. The motion to amend pointed out that the original application listed the headgate's location as on the east section line of Section 13, Range 13W, which is the same as the west section line of Section 18, Range 12W. Thus, while these amendments changed the section and range in the location description, the change amounted to a difference of only 100 feet.

         ¶7 The water court granted the motion to amend. Because the court found that "no person [would] be injured by the amendment," it held that the "applicants [were] not ...