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                                                   ADVANCE SHEET HEADNOTE
                                                             September 9, 2019

                                      2019 CO 74

No. 18SA215, The Luskin Daughters 1996 Trust v. Young—Water Law—
Personal Jurisdiction—Attorney Fees.

      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.

      The supreme court affirmed and remanded for a determination of attorney

fees. The court held that 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 properly dismissed the Trust’s

complaint.    It also held that because the Youngs successfully defended the
dismissal of this tort action on appeal, they are statutorily entitled to their

reasonable appellate attorney fees, and it remanded the case to the water court for

a determination of the amount of those fees.
                 The Supreme Court of the State of Colorado
                 2 East 14th Avenue • Denver, Colorado 80203

                                     2019 CO 74

                    Supreme Court Case No. 18SA215
                        Appeal from the District Court
      Weld County District Court, Water Division 1, Case No. 18CW3063
               Honorable James F. Hartmann, Water Judge


                             Plaintiff-Appellant:

     The Luskin Daughters 1996 Trust for the benefit of Lyndell Joy Luskin
                    Ackerman, Matthew Riley, Trustee,

                                         v.

                            Defendants-Appellees:

 Steve Young a/k/a Stephen W. Young and Heather Young a/k/a Heather A.
                                Young,

                                        and

                       Appellee Pursuant to C.A.R. 1(e):

            Corey DeAngelis, Division Engineer, Water Division 1.

                             Judgment Affirmed
                                   en banc
                              September 9, 2019


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.




CHIEF JUSTICE COATS delivered the Opinion of the Court.

                                      2
¶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


                                              3
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


                                          4
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 court’s ruling.

                                          II.

¶8    The 1969 Act defines a “water right” as “a right to use in accordance with

its priority a certain portion of the waters of the state by reason of the

appropriation of the same.” § 37-92-103(12), C.R.S. (2019). We have therefore

                                          5
made clear that one does not own water but merely owns a right to use water

within the limitations of the prior appropriation doctrine. Kobobel v. State Dep’t of

Nat. Res., 249 P.3d 1127, 1134 (Colo. 2011). More particularly, in Colorado a

property right in water entitles the holder “to use beneficially a specified amount

of water, from the available supply of surface water or tributary groundwater, that

can be captured, possessed, and controlled in priority under a decree, to the

exclusion of all others not then in priority under a decreed water right.” Empire

Lodge Homeowners’ Ass’n v. Moyer, 39 P.3d 1139, 1147 (Colo. 2001).

¶9    Although the right to use water is created when a person appropriates or

initiates an appropriation of unappropriated water of a natural stream of the state,

Shirola v. Turkey Cañon Ranch Ltd. Liab. Co., 937 P.2d 739, 748 (Colo. 1997), only

upon adjudication of that right is the amount and priority of the right identified,

Empire Lodge Homeowners’ Ass’n, 39 P.3d at 1148. Therefore, as we have also

previously made clear, absent an adjudication under the Act, water rights are

generally incapable of being enforced. Shirola, 937 P.2d at 749 (“Generally then, a

vested water right is not legally enforceable through the water administration

system unless it is represented by a water court decree, obtained after full

adjudication.”).

¶10   The significance of a water right’s adjudication does not end there however.

We have also indicated that an adjudication is necessary for maintaining a related


                                         6
action premised upon the existence of a claimed water right. See In re Tonko, 154

P.3d 397, 407 (Colo. 2007). Because a condemnation action involves issues such as

necessity and valuation in determining the compensation award for a ditch or

pipeline right-of-way needed for water transportation in the exercise of a water

right, we found in Tonko, that the adjudication of a water right was actually a

“prerequisite” for maintaining the private condemnation action for ditch

easements allowing for the exercise of that water right. Id.

¶11   The 1969 Act outlines the exclusive method to obtain adjudication of one’s

water right. Subsection 302(3) of the Act sets forth specific resume notice and

publication procedures required for a water rights application. The purpose of

those procedures is “to give notice of the nature, scope and impact of the decree

sought,” which then serves to enable any interested person “to file a statement of

opposition and contest the factual or legal grounds for issuance of such a decree.”

S. Ute Indian Tribe v. King Consol. Ditch Co., 250 P.3d 1226, 1234 (Colo. 2011). While

the notice requirements of the Act are generally consistent with those applicable

to proceedings in rem, the procedures of the statutory adjudication process itself

are unique, involving a division engineer’s consultation report, a referee’s

investigation, discovery, and a trial to resolve contested issues involving the

claimed water rights. In re Tonko, 154 P.3d at 407. We have therefore characterized

water right adjudications as special statutory proceedings, as to which C.R.C.P.


                                          7
81(a) limits the applicability of the civil rules to situations in which they are not

inconsistent or in conflict with the statute. See Groundwater Appropriators of S. Platte

River Basin, Inc. v. City of Boulder, 73 P.3d 22, 25 (Colo. 2003); see also Am. Water Dev.,

Inc. v. City of Alamosa, 874 P.2d 352, 381 (Colo. 1994) (quoting introductory note

preceding Uniform Local Rules for all State Water Court Divisions).

¶12    Prior to passage of the 1969 Act, adjudications historically occurred on a

piecemeal, haphazard basis. James N. Corbridge, Jr. & Teresa A. Rice, Vranesh’s

Colorado Water Law 139 (rev. ed. 1999). The 1969 Act was the General Assembly’s

attempt to provide a “comprehensive, integrated scheme of adjudication and

tabulation of water rights.” Id. And in this way, the uniform adjudication process

promotes our water law system’s objectives of security, reliability, and flexibility.

See Empire Lodge Homeowners’ Ass’n, 39 P.3d at 1147. Allowing for any other

method to adjudicate one’s water right would not comport with the General

Assembly’s intent to provide a comprehensive and specialized scheme to that end.

                                           III.

¶13    It is undisputed that the Trust did not file an application for an adjudication

of its water rights or otherwise follow the resume notice and publication

procedures required of such applications; and in the absence of such an

application, the water court resolved that it lacked the jurisdiction to grant the

declaratory and injunctive relief requested by the Trust. While the water court did

                                            8
not more particularly describe in its order the nature of the jurisdictional defect it

perceived, it discussed law concerning subject matter jurisdiction earlier in its

ruling, and therefore the Trust characterizes and disputes its ruling as one

premised on a lack of subject matter jurisdiction.

¶14    Although we have not always used the term with the same degree of

precision, see, e.g., Dallas Creek Water Co. v. Huey, 933 P.2d 27, 38 (Colo. 1997) (“The

filing of a diligence application, and notice thereof published in the water division

resume, confers subject matter jurisdiction on the water court . . . .”), we have

nevertheless often explained that subject matter jurisdiction concerns the court’s

authority to deal with the class of cases in which it renders judgment. See, e.g.,

Closed Basin Landowners Ass’n v. Rio Grande Water Conservation Dist., 734 P.2d 627,

636 (Colo. 1987). By statute, water courts have exclusive subject matter jurisdiction

over “water matters,” § 37-92-203(1), C.R.S. (2019), and we have previously noted

that a water matter is implicated by the claim of a right to use water acquired by

appropriation, as distinguished from the ownership of a water right. Humphrey v.

Sw. Dev. Co., 734 P.2d 637, 640–41 (Colo. 1987). Because the Trust claimed a right

to use water acquired by appropriation, it clearly raised a water matter, over which

the water court had subject matter jurisdiction.

¶15   By the same token, in the absence of notice published in the water division

resume, the water court nevertheless lacked the jurisdiction to adjudicate a water


                                           9
right in favor of the Trust. Rather than “subject matter” jurisdiction, however, the

jurisdictional shortcoming is more appropriately categorized as a matter of

“personal” jurisdiction. See generally 4 Charles A. Wright et al., Federal Practice and

Procedure § 1063 (4th ed. 2019) (“The concept[] of subject matter jurisdiction . . .

should be distinguished from the principle that the court must have jurisdiction

over the defendant’s person, his property, or the res that is the subject of the suit.”).

Both this court and the United States Supreme Court have remarked that water

adjudications, although unique, are in the nature of in rem proceedings, Nevada v.

United States, 463 U.S. 110, 143–44 (1983); S. Ute Indian Tribe, 250 P.3d at 1234; and

just as with Fed. R. Civ. P. 12(b)(2), we conclude that C.R.C.P. 12(b)(2) is the more

appropriate vehicle for challenging adequacy of notice, even for in rem

proceedings. See Wright, supra, § 1351 (“Although Rule 12(b)(2) only refers to ‘lack

of personal jurisdiction,’ the provision presumably is sufficiently elastic to

embrace a defense or objection that the district court lacks in rem or quasi-in-rem

jurisdiction, admittedly a subject that rarely arises in contemporary practice.”). To

the extent the Trust’s pleadings are properly construed to seek a determination of

water right with regard to the Trust’s use of water from the Youngs’ springs, the

water court lacked jurisdiction over the res of the action.

¶16   The Trust asserts, however, that it does not seek the determination of a water

right at all. Rather than an adjudication of its right to use a specific amount of


                                           10
water, in priority, from a designated structure, capable of being legally enforced

through the water administration system, the Trust asserts that it merely seeks a

declaration that it has a right to use water rising on the Youngs’ property that is

superior to any right of the Youngs to interfere with that use. While we have

elsewhere suggested that some “water matters,” over which the water court has

subject matter jurisdiction, might require personal service because of the one-on-

one nature of the claim, see S. Ute Indian Tribe, we have never suggested that

priority over another’s use of water could be established without having first

adjudicated a water right according to the resume notice process prescribed by the

1969 Act.

¶17   In Southern Ute Indian Tribe, despite holding that personal service is required

in only limited circumstances in water cases and that the application for

declaratory review in that case actually involved a “determination of water right,”

subject to the statutory resume notice process, we offered that some instances of

“party versus party litigation in water court . . . come under the personal service

requirements of C.R.C.P. 4 and 19,” including “injunction and declaratory

judgment actions where relief is sought against a named party.” 250 P.3d at 1235.

The examples we gave to support that proposition, as we noted at the time,

however, were all very limited claims concerning the ownership or administration

of already adjudicated water rights, and most did not mention or deal with service


                                         11
requirements at all. See N. Sterling Irrigation Dist. v. Simpson, 202 P.3d 1207 (Colo.

2009)    (declaratory   judgment    action    against   state   engineer   regarding

administration of “the one fill rule”); Archuleta v. Gomez, 200 P.3d 333 (Colo. 2009)

(injunctive relief involving ownership of existing water right through adverse

possession); City of Golden v. Simpson, 83 P.3d 87 (Colo. 2004) (motion to

temporarily restrain state engineer from barring further diversions in breach of

agreement among water rights holders); Gardner v. State, 614 P.2d 357 (Colo. 1980)

(proceeding to determine whether adjudicated water right should be considered

abandoned).     Our statement in Southern Ute Indian Tribe was therefore not

intended, nor could it be reasonably understood, to sanction a failure to comply

with the statutory resume notice procedure for the determination of a water right

by merely requesting declaratory or injunctive relief against a particular party.

¶18     While appropriation by diverting a specific amount of water and applying

it to a beneficial purpose may entitle the appropriator to adjudicate a water right,

according to the provisions of the 1969 Act, and may even have consequences for

priority of use among water rights adjudicated in the same year, it cannot afford a

priority of use, even with respect to another specific user, without formal

adjudication of a water right, in a specific amount, for a specific purpose, and

relative to a specific structure for diversion. To the extent the Trust’s first claim

for relief seeks to enjoin the Youngs from interfering with its use of water from


                                         12
springs rising on the Youngs’ property, without an adjudicated right to the use of

that water, as the Trust asserts, it simply fails to state a claim for relief the water

court is empowered to grant.

                                         IV.

¶19   The Youngs request trial and appellate attorney fees under section

13-17-201, C.R.S. (2019), for successfully defending this action.

¶20   Given the nature of the proceedings below, we decline to address the

Youngs’ entitlement to their fees incurred specifically at trial. After the water court

entered judgment dismissing the Trust’s complaint and after the Trust filed its

notice of appeal, the Youngs filed a motion with the water court for attorney fees

and costs. The water court deferred ruling on that motion pending the outcome

of this appeal. As the court of appeals has previously held, such an issue remains

within the jurisdiction of the trial court. See Koontz v. Rosener, 787 P.2d 192, 199

(Colo. App. 1989) (“[T]he filing of the notice of appeal of the merits judgment did

not divest the trial court of its continuing jurisdiction to determine the issues posed

by the cost bills and requests for attorney fees.”); Roa v. Miller, 784 P.2d 826, 830

(Colo. App. 1989) (“[A] trial court may address the issue of the award of attorney

fees for services rendered in connection with the underlying litigation on a post-

trial basis . . . .”). Therefore we do not reach the Youngs’ entitlement to fees that

may have been incurred below. See Kreft v. Adolph Coors Co., 170 P.3d 854, 859

                                          13
(Colo. App. 2007) (holding that the issue of attorney fees under section 13-17-201

was “not ripe for appellate review” because that issue was still pending before the

trial court).

¶21      We can conclude, however, that the Youngs are entitled to their attorney

fees incurred on appeal under section 13-17-201 and C.A.R. 39.1.

¶22      Section 13-17-2011 mandates an award of attorney fees to a prevailing

defendant where the plaintiff’s tort action is dismissed under C.R.C.P. 12(b).

Crandall v. City of Denver, 238 P.3d 659, 663 (Colo. 2010). In determining whether

an action lies in tort, we concur with prior determinations of the court of appeals

that the analysis should focus on the manner in which the claims are pleaded. See

Castro v. Lintz, 2014 COA 91, ¶ 16, 338 P.3d 1063, 1067. Where a plaintiff has

pleaded both tort and non-tort claims, the question of statutory attorney fees




1   The statute provides, in part:

         In all actions brought as a result of a death or an injury to person or
         property occasioned by the tort of any other person, where any such
         action is dismissed on motion of the defendant prior to trial under
         rule 12(b) of the Colorado rules of civil procedure, such defendant
         shall have judgment for his reasonable attorney fees in defending the
         action.

§ 13-17-201.



                                           14
properly turns on the question “whether the essence of the action was one in tort.”

Id., 338 P.3d at 1068.

¶23   Here, the Trust’s claims requesting declaratory and injunctive relief and

damages were “occasioned by” the Youngs’ alleged interference and trespass

against the Trust’s water and ditch rights. Among other particulars, the Trust’s

complaint alleged “interference with [the Trust’s] right to use natural spring

water” and “trespass upon and damage to [the Trust’s] ditch easements.” Those

allegations clearly alleged tortious conduct on behalf of the Youngs. See Roaring

Fork Club, L.P. v. St. Jude’s Co., 36 P.3d 1229, 1238 (Colo. 2001) (concluding that

trespass is committed for nonconsensual, unilateral alterations of ditches because

they jeopardize valuable vested property rights both in the ditch easement and the

water rights exercised by means of the ditch). Although two of the Trust’s claims

for relief sought declaratory judgments of the Trust’s water and ditch rights, those

claims only attempted to establish the property rights for which relief could lie

from the Youngs’ alleged tortious conduct. Therefore, the “essence” of the Trust’s

action sounded in tort, see Castro, ¶ 16, 338 P.3d at 1068, and because we affirm the

water court’s dismissal of that action pursuant to C.R.C.P. 12(b), the Youngs are

statutorily entitled to their appellate attorney fees.

¶24   We direct the water court on remand to determine the amount of those fees.

See C.A.R. 39.1.


                                          15
                                         V.

¶25     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.




                                         16
