             Opinions of the Colorado Supreme Court are available to the
         public and can be accessed through the Judicial Branch’s homepage at
           http://www.courts.state.co.us. Opinions are also posted on the
           Colorado Bar Association’s homepage at http://www.cobar.org.


                                                        ADVANCE SHEET HEADNOTE
                                                                       May 6, 2019

                                       2019 CO 32

No. 18SA110, Sheek v. Brooks—Ditch Easement—Sufficiency of Resume Notice—
Water Court Subject-Matter Jurisdiction.

      The supreme court upholds the water court’s entry of summary judgment

affirming the validity of a change of water right, determining that the resume notice was

sufficient to alert interested parties to the nature, scope and impact of the proposed

change despite an initial error in the location description for an impacted headgate. The

supreme court affirms the dismissal on other grounds, however, because all ancillary

claims should have been dismissed for lack of subject-matter jurisdiction after the notice

was deemed sufficient.
                      The Supreme Court of the State of Colorado
                      2 East 14th Avenue • Denver, Colorado 80203

                                       2019 CO 32

                         Supreme Court Case No. 18SA110
                             Appeal from the District Court
       La Plata County District Court, Water Division No. 7 Case No. 16CW3008
                      Honorable Jeffrey R. Wilson, Water Judge

                                Plaintiffs-Appellants:

          Gary Sheek, Sheek Family Limited Partnership, and Pamsey I. Sheek

                                           v.

                                Defendants-Appellees:

  Roger Brooks, Veryl Goodnight, Ida May Smith, and The James Fenberg Revocable
                                      Trust.

                                 Judgment Affirmed
                                      en banc
                                    May 6, 2019


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.
JUSTICE HART delivered the Opinion of the Court.


                                       2
¶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

                                              3
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

                                              4
location is the NW 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

required to republish the amended application.”

¶8     Eight years later, Gary Sheek, the Sheek Family Limited Partnership, and Pamsey

I. Sheek (together “Sheek”) filed a complaint in the water court.          Although Sheek

acknowledges in the amended complaint that the recorded interest in the real property

underlying the Davenport Ditch headgate belongs to the James Fenberg Revocable Trust,

he asserts sole ownership of the Davenport Ditch water rights. Sheek claims to have

“exclusively operated, maintained, and repaired the headgate and the ditch that carries

the Davenport Ditch water rights to their place of use.”

¶9     Sheek’s complaint presented five claims for relief based on Brooks’s change of

water right. The first claim sought a declaratory judgment that the water decree granted

by the water court was void because it was based upon insufficient resume notice. The

second claim was for quiet title to a prescriptive access easement for the Davenport Ditch,

including ancillary access rights. The third claim was for trespass, the fourth was for theft

and interference with a water right, and the fifth claim was for injunctive relief. Brooks



                                             5
filed a motion for summary judgment on the first claim and a motion to dismiss the

remaining claims.

¶10    The water court—La Plata County District Court, Water Division No. 7—granted

both motions. On the motion for summary judgment, the court held that the resume

notice was sufficient to place interested parties on inquiry notice, as required by section

37-92-302(3)(a), C.R.S. (2018), meaning that the decree was valid. As to the motion to

dismiss the remaining claims, the water court held that—because the decree was valid—

Brooks had the right to use the Davenport Ditch to deliver water to his land, and “[t]hus,

[Sheek’s] causes of action alleging trespass and seeking an injunction from using the

Davenport Ditch are moot.”        Finally, the water court held that it lacked ancillary

jurisdiction over the remaining claims.

¶11    Sheek appealed the order granting the motions, arguing, inter alia, that the water

court erred in holding that the resume notice was sufficient, in determining that the

trespass and injunctive relief claims were moot, and in dismissing the remaining claims.

                                        II. Analysis

¶12    We    begin   by   considering      whether   the   resume   notice   published   on

October 17, 2008, was sufficient to place Sheek on inquiry notice. We conclude that it

was. As a result, all the remaining claims should have been dismissed by the water court

for lack of subject-matter jurisdiction.

                                A. Sufficiency of Notice

¶13    Colorado law requires that notice of all filed applications for a change in water

right be published in a generally circulated newspaper. § 37-92-302(3). This so-called

                                              6
“resume notice,” a substitute for personal service, together with the application itself,

vests subject-matter jurisdiction in a water court. See In re Water Rights of Columbine Ass’n,

993 P.2d 483, 488–89 (Colo. 2000). Because a published resume notice substitutes for

personal service, it “must put interested parties ‘to the extent reasonably possible on

inquiry notice of the nature, scope, and impact of the proposed diversion.’” Monaghan

Farms, Inc. v. City & Cty. of Denver By & Through Bd. of Water Comm’rs, 807 P.2d 9, 15 (Colo.

1991) (quoting Closed Basin Landowners Ass’n v. Rio Grande Water Conservation Dist.,

734 P.2d 627, 633 (Colo. 1987)).

¶14    The inquiry notice standard is not onerous. To meet the standard, a resume notice

must include “sufficient facts to attract the attention of interested persons and prompt a

reasonable person to inquire further.” Monaghan Farms, 807 P.2d at 15; see also City of

Black Hawk v. City of Central, 97 P.3d 951, 959–61 (Colo. 2004). Thus, a resume notice is

defective only if, “taken as a whole[, it] is insufficient to inform or put the reader on

inquiry of the nature, scope[,] and impact of the proposed diversion.” Monaghan Farms,

807 P.2d at 15. We have explained that “[i]n cases where notice was inadequate, the

applicants’ filings were ‘characterized by the complete absence of material information

concerning the disputed water rights.’” City of Black Hawk, 97 P.3d at 959 (quoting City of

Thornton v. Bijou Irrigation, 926 P.2d 1, 26 (Colo. 1996)).

¶15    The sufficiency of the resume notice ultimately turns on the facts and

circumstances of the particular case. See Bijou Irrigation, 926 P.2d at 24. We have

previously considered whether misidentification of the exact location of a water right

rendered notice of the claimed right insufficient, and we have concluded that it does not.

                                               7
See Closed Basin, 734 P.2d at 635 (concluding that a resume notice was sufficient because

it notified interested parties of the total appropriation amount and the affected tracts of

land, even though it did not specifically identify the location of well sites); City of Black

Hawk, 97 P.3d at 959–61 (holding that the discrepancy between the location listed in an

initial application and the intended site of a dam enlargement was immaterial and thus

no amendment or republication of the resume notice was required). Similarly here, given

all of the facts and circumstances, the misidentification of the location of the water right

in the resume notice did not render the notice deficient.

¶16    Here, the resume notice was sufficient under the inquiry notice standard because

it would have alerted Sheek to the nature, scope, and impact of Brooks’s proposed

change. First, Sheek was apparently the only user of the Davenport Ditch at the time of

the published notice. A reasonably interested, sole user of the ditch would be put on

inquiry notice by any mention of the Davenport Ditch in the resume notice. That is even

more true here because the words “Davenport Ditch” appeared in the resume notice five

times, once in bold typeface. And, Brooks’s resume notice specifically stated that the

applicants sought to change “the point of diversion for their Giles Ditch water right to

the headgate of the Davenport Ditch.” Therefore, Sheek cannot plausibly contend that

there was inadequate notice based on the published resume because he “should have

anticipated that the disputed rights might be at issue.” Bijou Irrigation, 926 P.2d at 25.

¶17    Second, even with the error in section and range, the resume notice published on

October 17 contained sufficient information to alert an interested party as to the nature,

scope, and impact of the change in water right. The nature of the change was clearly

                                             8
stated as a change of point of diversion. The scope was addressed by (1) the resume

notice’s indication that the location of the property and the headgates of both the Giles

Ditch and the Davenport Ditch were shown on a map attached to the application and

(2) the repeated, explicit identification of the Davenport Ditch. And, in terms of impact,

the resume notice indicated that Brooks intended to change the point of diversion for his

previously decreed water right of 0.167 cubic feet per second from the Giles Ditch to the

point of diversion for the Davenport Ditch.

¶18    Water Rule 4 generally requires republication of the resume notice when a

correction would result in a move of the claimed right to a different quarter section, which

this correction did. See Co. St. Water Ct. Rule 4(b)(3). However, the water judge “may

determine that republication is unnecessary” if it determines that “no person will be

injured” by foregoing republication.      Rule 4(c).   Here, the water court made that

determination. And because the inquiry notice standard was met, that determination

was reasonable.

¶19    Thus, Brooks’s original resume notice was sufficient because it would have placed

a reasonably interested party on inquiry notice. As such, the water court did not err in

granting summary judgment in favor of Brooks on the claim that the resume notice was

deficient.

                                 B. Remaining Claims

¶20    Once the water court found that the resume notice was sufficient, it should have

dismissed the remaining claims for lack of subject-matter jurisdiction because they were

not “water matters” within the purview of section 37-92-203, C.R.S. (2018).

                                              9
¶21    Water courts in Colorado have “exclusive jurisdiction of water matters . . . .” Id.

This grant of subject-matter jurisdiction includes ancillary issues that “directly affect the

outcome of water matters within the exclusive jurisdiction of the water court.” Crystal

Lakes Water & Sewer Ass’n v. Backlund, 908 P.2d 534, 543 (Colo. 1996) (“Although the water

court has jurisdiction over issues ancillary to water matters, that court does not have

jurisdiction over real property issues only tangentially related to a water matter.”); see

also FWS Land & Cattle Co. v. Colo. Div. of Wildlife, 795 P.2d 837, 841 (Colo. 1990) (holding

that a water court properly refused to determine “a right to use lands underlying a

reservoir [because it] involve[d] real property issues and only tangentially involve[d]

water matters”).

¶22    Because the resume notice in this case was sufficient and Brooks’s change of water

right was valid, the water court lacked ancillary jurisdiction over Sheek’s remaining

claims for relief. Any additional claims deriving from Brooks’s point of diversion change,

such as trespass or theft, do not directly affect the outcome of the water matter and

therefore may be brought only before the district court. See Crystal Lakes, 908 P.2d at 543

(holding that water courts have jurisdiction over ancillary matters that “directly affect the

outcome of water matters”).

¶23    The water court, however, found that the claims of trespass and the request for

injunctive relief were moot. Because the water court lacked jurisdiction over those claims,

it should not have concluded that they were moot. But because the water court did

dismiss all of the claims, we affirm the judgment, albeit on different grounds.



                                             10
                                  III. Conclusion

¶24   The published resume notice in this case was sufficient to put Sheek on inquiry

notice, and all the remaining claims should thus have been dismissed for lack of

subject-matter jurisdiction. We therefore affirm, on different grounds, the judgment of

dismissal.




                                          11
