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
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
...