Gardner v. State, 5

• Docket Nº: No. 5
• Citation: 614 P.2d 357, 200 Colo. 221
• Case Date: July 07, 1980
• Court: Supreme Court of Colorado

Page 357

614 P.2d 357

200 Colo. 221

Rueben F. GARDNER and Pauline M. Gardner, Donald C. Dorrell

and Joann Dorrell, Glen E. McCormick and Beverly E.

McCormick, Arthur James Estes and Shelia Rhae Estes, George

R. Broughton and Vernice M. Broughton, Larry E. Loesch and

Jackqueline L. Loesch, Okey D. Squires, and Arlia M.

Squires, Verner D. Mead and Elma M. Mead, Olive S. Johnson, Charles McAlary, William H. Haynes, and John Savage, Applicants-Appellants, v. STATE of Colorado, Lee R. Enewold, Division Engineer, Water

Division No. 5, Appellees.

No. 80SA8.

Supreme Court of Colorado, En Banc.

July 7, 1980.

Delaney & Balcomb, Kenneth Balcomb, Glenwood Springs, for applicants-appellants.

J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., Dennis M. Montgomery, David Aschkinasi, Asst. Attys. Gen., Denver, for appellees.

QUINN, Justice.

This appeal raises the question whether the Water Right Determination and Administration Act of 1969 (Water Right Act), section 37-92-101 et seq., C.R.S.1973, permits the water judge, in connection with an application for a determination of abandonment filed under section 37-92-302(1)(a), C.R.S.1973, to enter a decree that certain water rights of unknown persons have been abandoned, when the only notice of the application is its inclusion in the monthly resume published by the water clerk under section 37-92-302(3)(b), C.R.S.1973 (1979 Supp.). The water judge determined that subsection (1)(a) of section 37-92-302, C.R.S.1973, did not include within the resume-notice procedures an application for a determination of abandonment, and he dismissed the application. We affirm.

On June 18, 1978, Rueben F. Gardner, Pauline M. Gardner and eighteen others (Applicants) filed with the water clerk for Water Division No. 5 an application for a determination that certain water rights of unknown parties had been abandoned. The application alleged that no water had been diverted or applied to beneficial use for at least 50 years, and that the identity and location of the owners were unknown to the applicants. The water clerk included the application in the resume for June 1978 and caused publication of the resume pursuant to the resume provisions of section 37-92-302(3)(b), C.R.S.1973 (1979 Supp.). No statement of opposition to the application was filed. The water referee then made an investigation of the application and ruled that the allegations were true and the application should be granted. The water judge suspended the ruling of the referee for the reason that an application for a determination of abandonment was not within the resume-notice procedures of section 37-92-302, C.R.S.1973. The water judge ordered the applicants to make efforts to identify the original owners or their successors in interest, serve them with process pursuant to C.R.C.P. 4, and make them party defendants pursuant to C.R.C.P. 19. The applicants were directed to notify the court whether they wished to proceed in accordance with the court's order by September 30, 1979. The applicants elected to stand on their original application filed pursuant to section 39-92-302(1)(a), C.R.S.1973, and the water judge then reversed the ruling of the referee and dismissed the application. The judgment of dismissal entered by the water judge constitutes the basis of this appeal. The division engineer was named as appellee pursuant to C.A.R. 1(e).

I.

Proceedings under the Water Right Act, section 37-92-101 et seq., C.R.S.1973 are special statutory proceedings within the contemplation of C.R.C.P. 81(a), Colorado River Water Conservation Dist. v. Rocky Mountain Power Co., 174 Colo. 309, 486 P.2d 438 (1971), cert. denied, 405 U.S. 996, 92 S.Ct. 1245, 31 L.Ed.2d 465 (1972), and along with the provisions of C.R.C.P. 4 dealing with service by publication, serve as a backdrop to the resolution of the issue raised by this appeal.

Section 37-92-302(1)(a), C.R.S.1973, provides the statutory mechanism for filing applications with respect to water rights:

"Any person who desires a determination of a water right or a conditional water right and the amount and priority thereof, including a determination that a conditional water right has become a water right by reason of the completion of the appropriation, a determination with respect to a change of a water right, approval of a plan for augmentation, or quadrennial finding of reasonable diligence, shall file with the water clerk in quadruplicate a verified application setting forth facts supporting the ruling sought, a copy of which shall be sent by the water clerk to the state engineer and the division engineer."

Any person opposing the application may file a verified statement of opposition setting forth why the application should not be granted or why it should be granted only in part or on condition. Section 37-92-302(1)(b), C.R.S.1973 (1979 Supp.).

Proceedings commenced under section 37-92-302(1)(a), C.R.S.1973, are not subject to the service of process requirements of C.R.C.P. 4, but rather are handled through the unique resume-notice provisions of sub-section (3) of section 37-92-302, C.R.S.1973 (1979 Supp.). Under these procedures the water clerk, not later than the fifteenth day of each month, prepares a resume of all applications filed in the water division during the preceding month. The resume must state the name and address of the applicant, a description of the water right involved, and a description of the ruling sought. A copy of the resume is mailed to each person who is likely to be affected by the application or who has requested a copy. The clerk is further directed to publish the resume or portion thereof "(n)ot later than the end of such month . . . in a newspaper or newspapers as is necessary to obtain general circulation once in every county affected, as determined by the water judge." Section 37-92-302(3)(b), C.R.S.1973 (1979 Supp.).

The water judge must refer all applications and statements of opposition filed under section 37-92-302 to a water referee. Section 37-92-203(7), C.R.S.1973. After the resume is published the referee conducts an investigation to determine whether the statements in the application are true, and then rules on the application: ¹

"In accordance with procedures specified in this article, the referee in each division shall in the first instance have the authority and duty to rule upon determinations of water rights and conditional water rights and the amount and priority thereof, including a determination that a conditional water right has become a water right by reason of completion of the appropriation, determinations with respect to changes of water rights, plans for augmentation, approvals of reasonable diligence in the development of appropriations under conditional water rights, and determinations of abandonment of water rights or conditional water rights; and he may include in any ruling for a determination of water right or conditional water right any use or combination of uses, any diversion or combination of points or methods of diversion, and any place or alternate places of storage and may approve any change of water right as defined in this article." Section 37-92-301(2), C.R.S.1973 (1979 Supp.).

The water judge may reverse any ruling by the referee which is contrary to law. Section 37-92-304(5), C.R.S.1973.

In contrast to these resume-notice procedures, C.R.C.P. 4 sets forth procedures for accomplishing service upon persons in actions affecting specific property or in any proceeding in rem. C.R.C.P. 4(g)(1) authorizes service by mail upon a person whose identity and address are known:

"If the person to be served is without the state of Colorado, the party desiring service by mail shall file a motion verified by the oath of such party or of someone in his behalf for an order for service by mail. Such motion shall state the facts showing why such method of service is advisable, and the address of the person to be served. The court may, after hearing the motion ex parte, direct the clerk to send by registered or certified mail a copy of the process and a copy of the complaint, addressed to such person at such address, requesting a return receipt signed by addressee only. Such service shall be complete on the date of the filing of the clerk's proof thereof, together with such return receipt attached thereto signed by such addressee."

C.R.C.P. 4(h) provides for service by publication upon a person whose identity or address is unknown:

"The party desiring service of process by publication shall file a motion verified by the oath of such party or of someone in his behalf for an order of publication. It shall state the facts authorizing such service, and shall show the efforts, if any, that have been made to obtain personal service within this state and shall give the address, or last known address, of each person to be served or shall state that his address and last known address are unknown. The court shall hear the motion ex parte and, if satisfied that due diligence has been used to obtain personal service within this state or that efforts to obtain the same would have been to no avail, shall order publication of the process in a newspaper published in the county in which the action is pending. Such publication shall be made for four weeks. Within fifteen days after the order the clerk shall mail a copy of the process to each person whose address or last known address has been stated in the motion. Service shall be complete on the day of the last publication. If no newspaper is published in the county, the court shall designate one in some adjoining county."

II.

The applicants argue that, contrary to the order of the water court in this case, the Water Right Act, section 37-92-101 et seq., C.R.S.1973, does permit the water judge to make a determination of abandonment under section 37-92-302(1)(a), when the application has been filed in accordance with the resume-notice...