Danielson v. Kerbs Ag., Inc.

• Decision Date: 01 June 1982
• Docket Number: No. 81SA165,81SA165
• Citation: 646 P.2d 363
• Parties: Jeris A. DANIELSON, State Engineer, State of Colorado, Plaintiff-Appellant, Central Yuma County Ground Water Management District, Third Party Plaintiff, v. KERBS AG., INC., Defendant-Appellee.
• Court: Colorado Supreme Court

Page 363

646 P.2d 363

Jeris A. DANIELSON, State Engineer, State of Colorado Plaintiff-Appellant Central Yuma County Ground Water Management District, Third Party Plaintiff, v. KERBS AG., INC., Defendant-Appellee.

No. 81SA165.

Supreme Court of Colorado, En Banc.

June 1, 1982.

Rehearing Denied June 21, 1982.

J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J Mullarkey, Sol. Gen., Wendy C. Weiss, Asst. Atty. Gen., Denver, for plaintiff-appellant.

David J. Miller and Associates, David J. Miller, Kevin L. Strobel, Greeley, for defendant-appellee.

ERICKSON, Justice.

This case arises under the Colorado Ground Water Management Act, section 37-90-101 et seq., C.R.S. 1973. The Colorado State Engineer, as plaintiff-appellant (State Engineer), appeals from a district court order denying a request for injunctive relief against defendant-appellee, Kerbs Ag., Inc. (Kerbs), to curtail expansion of the historical consumptive use of Kerbs' water rights. We reverse and remand to the district court for a hearing in accordance with the directions expressed herein and for the entry of findings of fact and appropriate conclusions of law.

I.

In February 1965, the State Engineer issued Kerbs' predecessor in interest, Elmer Lundvall, three permits which authorized the construction of wells to appropriate ground water at a maximum rate of 1200 gallons per minute (gpm) per well. Lundvall owned all of section 28, Township 1 South, Range 45 West of the 6th Principal Meridian (Section 28). Each of the three permits was issued based on an application to appropriate water to irrigate 140 acres of Lundvall's property, which was located within the boundaries of the Northern High Plains Designated Ground Water Basin. ¹ On July 26, 1965, pursuant to the Colorado Ground Water Management Act then in effect, 1965 Perm.Supp., C.R.S. 1963, 148-18-1 et seq. (now codified in 37-90-101 et seq., C.R.S. 1973) (Act), Lundvall notified the Colorado Ground Water Commission (Commission) that wells had been constructed in the northeast, northwest, and southwest quarters of Section 28; that they were each producing 1200 gpm; and that they were each irrigating 140 acres in the specified quarter section designated in their respective permits. Under rules subsequently adopted by the Central Yuma County Ground Water Management District (Management District), Lundvall could not use water from the existing wells to irrigate the southeast quarter of Section 28.

In December 1968, Lundvall filed an application with the Commission to drill a well in the southeast quarter of Section 28, offering to reduce the yield of the other three wells in that section by the amount to be pumped from the proposed well. On March 19, 1969, the Commission denied the application on the grounds that the appropriation of water by a fourth well in Section 28 would unreasonably impair existing water rights. ² Lundvall did not appeal the Commission's decision denying his application.

Approximately one month after the Commission denied Lundvall's application, Lundvall allegedly diverted water from his wells to the southeast quarter of Section 28, thereby increasing by 141 acres the land irrigated by one or more of the three wells in Section 28. ³ The State Engineer thereafter notified Lundvall to cease and desist irrigating the additional 141 acres. When Lundvall continued to irrigate the 141 acres, the State Engineer filed this action to enjoin Lundvall from transporting water from any of the three wells to land other than that designated in the permits issued by the Commission. Lundvall counterclaimed for an injunction against the State Engineer and challenged the constitutionality of the Act. The Management District was joined as a third party plaintiff on Lundvall's motion, and Lundvall filed a crossclaim against the Management District, seeking an injunction prohibiting the enforcement of its rules and regulations. The District Court for Weld County found the Act unconstitutional and, on July 10, 1973, granted the relief requested by Lundvall. The State Engineer thereafter appealed.

In Kuiper v. Lundvall, 187 Colo. 40, 529 P.2d 1328 (1974), appeal dismissed, 421 U.S. 996, 95 S.Ct. 2391, 44 L.Ed.2d 663 (1975), we reversed the district court, found the Act to be constitutional, and remanded the case to the district court "with directions to vacate the injunction issued against the State Engineer, to dismiss Lundvall's counterclaim and crossclaim and to proceed under the issues framed by the complaint and answer...." Id. On remand, as the successor in title to all lands and wells owned by Lundvall, Kerbs was substituted for Lundvall as the defendant in this action. To further complicate the case, between October 1965 and December 1967, Lundvall applied for and received six new permits to construct wells to irrigate additional portions of his property. Shortly thereafter, the Commission learned that Lundvall was irrigating additional acreage, without Commission approval, from the wells constructed as a result of the issuance of the six additional permits. Accordingly, during the pendency of Kuiper v. Lundvall, supra, the State Engineer also sought to enjoin the expansion of irrigated acreage from the six additional wells. On November 16, 1977, the cases were consolidated by this Court.

In an amended complaint filed on November 15, 1977, the State Engineer alleged that Kerbs was irrigating land not listed on his permits in violation of Management District rules and regulations prohibiting expanded use, and in violation of guidelines issued by the Commission. ⁴ In addition, the State Engineer contended that Kerbs was using water from an area in which no unappropriated water was available and that such expanded use injured the State of Colorado and all ground water appropriators in the Management District. On September 22, 1978, the district court denied injunctive relief to curtail the expansion of irrigated acreage from the wells in Section 28 and from one of the six new wells on the grounds that the amount of water pumped by the wells had not increased. ⁵ However, because the district court concluded that expansion of the irrigated acreage from the five remaining wells occurred after the enactment of the Act and the rules and regulations of the Management District, it enjoined Kerbs from irrigating the expanded acreage from those wells.

On November 14, 1978, the State Engineer and the Management District filed timely motions for a new trial. Between November 14, 1978 and February 10, 1981, the State Engineer did not cause the motions to be set for hearing, but did seek enforcement of that portion of the district court's decree which was favorable to him by a letter to Kerbs dated June 27, 1980. Thereafter, on October 24, 1980, the State Engineer sought and obtained an order to show cause why Kerbs should not be held in contempt of court for violation of the decree. On February 10, 1981, at the show cause hearing, the district court dismissed the State Engineer's motion for a new trial with prejudice for lack of diligent prosecution, and found Kerbs not guilty of contempt of court. ⁶ The State Engineer now seeks to appeal the decree of the district court denying injunctive relief to curtail Kerbs' irrigation of the expanded acreage. For the reasons expressed in this opinion, we reverse the decision of the district court.

II.

As a preliminary matter, we reject Kerbs' contention that we lack subject matter jurisdiction to hear this appeal by virtue of the district court's sua sponte dismissal of the State Engineer's motion for a new trial, with prejudice, for lack of diligent prosecution. Kerbs contends that the motion was nullified since the district court merely dismissed the motion and did not rule on its merits. In Kerbs' view, the State Engineer's failure to obtain a denial of the motion for a new trial precludes judicial review under C.R.C.P. 59(f), which provides:

"The party claiming error in the trial of any case ... must move the trial court for a new trial as herein above provided, and the trial court may not dispense with the necessity for filing such a motion but may dispense with oral argument on the motion after it is filed, and only questions presented in such motion will be considered by the appellate court on review; provided, however, that if a motion to alter or amend the judgment is filed it shall, for appellate purposes, be considered as a motion for a new trial."

We disagree with Kerbs' argument. Under the facts of this case, the district court's order dismissing the State Engineer's motion does not defeat his right to appellate review by this Court.

At the hearing on February 10, 1981, counsel for the State Engineer requested the district court to rule on the motion for a new trial which was filed on November 14, 1978. The trial judge neither denied nor granted the motion, but dismissed it summarily:

"THE COURT : It would appear to me it's a little late for your request for a ruling on your motion for a new trial, over two years late. The motion isn't viable forever.

"COUNSEL FOR THE STATE ENGINEER : Your Honor, I would request the Court rule on that motion. While not set for hearing, it has been before the Court for that period. There was change of counsel in our office, and I have taken over (the) case load and would request that the Court rule on that motion.

"THE COURT : The Court will deny your request because of its tardiness. Because of your lack of diligence in relation to your motion, the Court refuses to act upon it."

"COUNSEL FOR KERBS : Your Honor, could we ask that the Court make clear at least for purposes of the record that the Court is dismissing motions for a new trial rather than granting or denying the motions for a new trial?

"THE COURT : I beg your pardon?

"COUNSEL FOR KERBS : I just want to make it clear for the sake of the record that, as I understand it, the Court is dismissing the motions for a...