The Luskin Daughters 1996 Trust v. Young

          Appeal from the District Court Weld County District Court, Water Division 1, Case No. 18CW3063 Honorable James F. Hartmann, Water Judge

          Attorneys for Plaintiff-Appellant: Alperstein & Covell, P.C. Gilbert Y. Marchand, Jr. Denver, Colorado

          Attorneys for Defendants-Appellees: Porzak Browning & Bushong LLP Kevin J. Kinnear Boulder, Colorado

          No appearance by or on behalf of Corey DeAngelis, Division Engineer, Water Division 1.

          OPINION

          COATS CHIEF JUSTICE

         ¶1 The Trust appealed from an order of the water court dismissing its complaint for declaratory and injunctive relief, as well as for damages. The water court concluded that in the absence of an application for the determination of a water right, the Trust's claim of interference by the Youngs with its unadjudicated appropriative rights to springs that arise on the Youngs' land could not proceed before the water court. It therefore granted the Youngs' motion, pursuant to C.R.C.P. 12(b)(1), (2), or (5), to dismiss.

         ¶2 Because the water court could not provide the Trust's requested relief without the Trust's first having adjudicated its water rights in accordance with section 37-92-302, the water court's dismissal of the Trust's complaint is affirmed. Because the Youngs have successfully defended the dismissal of this tort action on appeal, they are statutorily entitled to their reasonable appellate attorney fees, and the case is remanded to the water court for a determination of the amount of those fees.

         I.

         ¶3 In 2018, The Luskin Daughters 1996 Trust filed a Complaint for Declaratory and Injunctive Relief and Damages in the Water Court for Division 1, asserting interference by Steve and Heather Young with the Trust's right to use natural spring water that historically arose on the Youngs' property. The complaint alleged that the Trust and the Youngs own adjacent parcels of land; that in 2017 the Youngs built a house that destroyed one or more ditches that had historically delivered spring water to the Trust's property; and that those water rights had been used on the Trust's property for purposes of irrigation, animal watering, wildlife, and recreation. The complaint conceded, however, that those water rights had never been adjudicated.

         ¶4 The Trust's complaint actually asserted five separate claims for relief, seeking: (1) a declaratory judgment confirming the existence of its unadjudicated water rights, (2) a declaratory judgment confirming the existence of ditch easements for those water rights, (3) injunctive relief from the Youngs' interference with those water rights, (4) injunctive relief from the Youngs' trespass and damage to the Trust's ditch rights, and (5) damages.

         ¶5 Without answering the complaint, the Youngs filed a motion to dismiss, premised on three different provisions of C.R.C.P. 12. First, the Youngs asserted that the water court lacked jurisdiction over the Trust's first claim for declaratory relief, arguing that its claim effectively sought an application for a "determination of a water right" under section 37-92-302(1)(a) of the 1969 Water Right Determination and Administration Act, which on its face mandates compliance with the resume notice and publication procedures set forth in subsection 302(3). Second, they asserted that since the water court lacked jurisdiction to consider the only "water matter" in the Trust's complaint, it similarly lacked ancillary jurisdiction over the remaining claims. Finally, the Youngs moved to dismiss on the alternate ground that even if the water court were determined to have jurisdiction over the Trust's claims, it could not provide the Trust's requested relief because although an unadjudicated appropriative right may be reduced to an adjudicated water right, until it has been so adjudicated, it cannot itself be judicially enforced against another party.

         ¶6 The water court granted the motion to dismiss, reasoning that by seeking a declaration of its undecreed water rights pursuant to Rule 57, without proceeding according to the statutorily mandated process for adjudicating such rights in the first instance, the Trust was asking it "to operate outside the 1969 Act." The court ultimately concluded that it did not have the "authority" to make such a determination. In its order granting the motion to dismiss, the water court indicated that in the absence of an application for the determination of a water right pursuant to the Act, it lacked the jurisdiction to grant the relief requested in the Trust's claims.

         ¶7 The Trust appealed to this court from the water ...