The Luskin Daughters 1996 Trust for the benefit of Lyndell Joy Luskin Ackerman, Matthew Riley, Trustee, Plaintiff-Appellant
Steve Young a/k/a Stephen W. Young and Heather Young a/k/a Heather A. Young, and Defendants-Appellees Corey DeAngelis, Division Engineer, Water Division 1. Appellee Pursuant to C.A.R. 1(e)
from the District Court Weld County District Court, Water
Division 1, Case No. 18CW3063 Honorable James F. Hartmann,
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
appearance by or on behalf of Corey DeAngelis, Division
Engineer, Water Division 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
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.
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.
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.
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
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.
The Trust appealed to this court from the water ...