Broyles v. Fort Lyon Canal Co.
| Decision Date | 04 February 1985 |
| Docket Number | 83SA456,Nos. 83SA351,s. 83SA351 |
| Parties | Jake O. BROYLES, Applicant-Appellant, v. The FORT LYON CANAL COMPANY and Southeastern Colorado Water Conservancy District, Objectors-Appellees, and Robert Jesse, Division Engineer for Water Division 2, and State of Colorado Department of Natural Resources, Appellees. |
| Court | Colorado Supreme Court |
Fairfield & Woods, Howard Holme, Kevin B. Pratt, Denver, for objector-appellee Southeastern Colorado Water Conservancy Dist.
Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Paula C. Phillips, Asst. Atty. Gen., Denver, for appellee Robert Jesse, Div. Engineer for Water Div. 2.
No appearance for appellee State of Colo. Dept. of Natural Resources.
Shinn Lawyers, Carl M. Shinn, Lamar, for applicant-appellant.
Lefferdink & Davis, John J. Lefferdink, Lamar, Calkins, Kramer, Grimshaw & Harring, P.C., Wayne B. Schroeder, P.C., Bruce D. Bernard, Denver, for objector-appellee The Fort Lyon Canal Co.
In these consolidated cases, Jake Broyles appeals from two separate judgments of the Water Judge of the District Courts in and for Water Division 2. Both judgments arose out of the same proceeding--Broyles' 1979 application for a determination that several conditional underground water rights had become absolute by reason of completion of the appropriations, and for a quadrennial finding of reasonable diligence in the development of one of those conditional water rights to the extent that the amount conditionally decreed had not been applied to beneficial use.
In 83SA351, Broyles appeals from an order of the water judge requiring him to abandon and plug four wells. Because we find that the judge wrongly interpreted an earlier decision of this court to require that the wells be plugged, we reverse. See Broyles v. Fort Lyon Canal Co., 638 P.2d 244 (Colo.1981). On remand, should the water judge determine that he has jurisdiction to consider the well-plugging matter, the judge should exercise his discretion, as directed in part III of this opinion, when deciding whether to issue an order to plug the wells.
In 83SA456, Broyles appeals from a subsequent order of the water judge granting a motion for summary judgment filed by the Southeastern Colorado Water Conservancy District. The judgment dismissed Broyles' application for quadrennial findings of reasonable diligence and cancelled five conditional water rights decreed to certain wells in 1975. 1 We affirm this judgment, agreeing with the water judge that Broyles failed to file his application for diligence findings within the time required, and that this failure compels the cancellation of the conditional water rights.
The basic facts concerning Broyles' various water wells and absolute and conditional underground water rights appear in our earlier decision, Broyles v. Fort Lyon Canal Co., and will not be repeated here. However, a recitation of additional facts appearing in the record is necessary to the resolution of these appeals.
On February 14, 1975, upon the application of Jake and Mary Broyles, the water judge decreed certain absolute and conditional water rights to five wells, all "replacement wells" as that term is defined in section 37-90-103(13), 15 C.R.S. (1973). The decree included the following language:
It is further,
ORDERED, ADJUDGED and DECREED, That as to any conditional right awarded hereunder, the owners thereof, if they desire to maintain the same, shall file an application for quadrennial finding of reasonable diligence with the water clerk of this court during the month of February 1979 and every four (4) years thereafter, until the rights are decreed final ....
Section 37-92-301(4), 15 C.R.S. (1973), requires the owner of a conditional water right to obtain a finding of reasonable diligence in the development of the proposed appropriation every four years or the conditional water right "shall be considered abandoned." See also §§ 37-92-302, -305(7), 15 C.R.S. (1973 and 1984 Supp.).
On December 11, 1978, the clerk for water division 2 notified the Broyles that they were required to file an application for findings of reasonable diligence during the month of February 1979 or the conditional water rights would be considered abandoned. See § 37-92-305(7), 15 C.R.S. (1984 Supp.). The notice was mailed by certified mail to the Broyles' last known address, in Lamar, where Mary Broyles still lived. The marriage of Jake and Mary Broyles had been dissolved after the 1975 water rights decree, and Jake Broyles no longer lived at that address. The decree, however, still reflected both names. Notice was also mailed by regular mail to Carl M. Shinn, the attorney who had represented the Broyles at the time the conditional decree was granted.
On December 13, Shinn discussed with Mary Broyles the importance of the notice and the need to file necessary proof of reasonable diligence by the end of February in 1979. Shinn requested that she advise Jake Broyles about the notice from the court. On December 15, Jake Broyles returned to Lamar from Colorado Springs, where he had been receiving medical attention, and Mary Broyles gave him the notice received from the court clerk. After December 15, Shinn discussed the notice with Jake Broyles on two separate occasions and impressed upon him the importance of filing the application for diligence findings within the required time. Broyles never authorized Shinn to file the necessary application, telling Shinn that the matter was taken care of.
An application for a quadrennial finding of reasonable diligence was not filed by the Broyles by the end of February in 1979. On March 15, 1979, the water judge for water division 2 entered an order cancelling the five conditional water rights decreed to the Broyles' wells in 1975.
On April 3, 1979, the Broyles filed a motion for relief from judgment by reason of inadvertence and excusable neglect and "for other reasons justifying relief as set forth herein," pursuant to C.R.C.P. 60(b). 2 In the motion, the Broyles detailed the facts as noted above and then asserted the following: Jake Broyles took care of water matters for both Jake and Mary Broyles as Mary Broyles had little knowledge regarding these matters. A poor physical condition requiring medical attention, personal stress from financial and physical problems, and the need to travel on business in January of 1979 prevented Jake Broyles from "adequately attending to his business" and left him with no recollection of receiving the notice from the court concerning the conditional water rights or of having any conversation with attorney Shinn about the matter.
On April 17, 1979, the Hon. John C. Statler, the water judge for water division 2, found that an application for quadrennial findings of reasonable diligence was not filed by the Broyles within the required time period due to inadvertence and excusable neglect. The court set aside the order cancelling the conditional water rights and allowed the Broyles additional time to file the necessary application.
On May 9, 1979, the Broyles filed a document titled Application to Make Absolute a Conditional Water Right and Application for Quadrennial Finding of Reasonable Diligence. The Fort Lyon Canal Company (Fort Lyon) and the Southeastern Colorado Water Conservancy District (Southeastern) filed statements of opposition.
On May 13, 1980, the water judge issued an order granting a motion for partial summary judgment filed by Fort Lyon and disallowing the portion of the Broyles' application seeking to make absolute the conditional water rights decreed to the replacement wells. One basis for the court's order, and the only one relevant here, was that a conditional water right decreed to a replacement well could not be made absolute by taking water from the original well (i.e., the replaced well), as Jake Broyles 3 had sought to do as to four of the wells. Judgment was made final on this order pursuant to C.R.C.P. 54(b), and Jake Broyles appealed. We affirmed, on November 16, 1981, holding that Broyles was obligated to abandon the replaced wells upon completion of the replacement wells, and that the replaced wells could not be used to make absolute the conditional water rights decreed to the replacement wells. Broyles v. Fort Lyon Canal Co., 638 P.2d at 249-50. We also noted that before Broyles could use the replaced wells as alternate points of diversion for the absolute and conditional water rights decreed in 1975 for the replacement wells, he would be required to file an application and obtain an order establishing the replaced wells as alternate points of diversion for the rights decreed to the replacement wells. 638 P.2d at 249-51. See §§ 37-92-103(5) and -302(1)(a), 15 C.R.S. (1973 and 1984 Supp.). The proceedings continued before the water judge on Broyles' application for quadrennial findings of reasonable diligence.
Fort Lyon and Southeastern then filed motions for an order requiring Broyles to abandon and plug the replaced wells. Before the court reached a decision on these motions, Broyles instituted a separate proceeding in water division 2 in which he sought to have the replaced wells decreed as alternate points of diversion for the absolute and conditional water rights decreed to the replacement wells in 1975.
On July 13, 1983, the court ordered Broyles to abandon and plug the replaced wells in accordance with Section 5 of the Rules and Regulations of the State of Colorado, Division of Water Resources, State Board of Examiners of Water Well and Pump Installation Contractors. 4 The water judge interpreted what he characterized as ambiguous language in our earlier decision and concluded that "the Supreme Court intended that the wells referred to as abandoned must be abandoned and plugged pursuant to [the administrative rules]." The court noted that although alternate-point-of-diversion well permits...
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