Oliver v. District Court In and For Boulder County
| Decision Date | 10 May 1976 |
| Docket Number | No. 27030,27030 |
| Citation | 549 P.2d 770,190 Colo. 524 |
| Parties | Robert M. OLIVER et al., Petitioners, v. The DISTRICT COURT IN AND FOR the COUNTY OF BOULDER, State of Colorado, and the Honorable William D. Neighbors, one of the judges thereof, Respondents. |
| Court | Colorado Supreme Court |
Roger E. Stevens, Harriet Templer Moskovit, Boulder, for petitioners.
Moses, Wittemyer & Harrison, P.C., David L. Harrison, Boulder, for respondents.
In this original proceeding, the petitioners seek to prohibit the transfer of their suit for injunctive relief from the District Court in Boulder to the District Court in and for Water Division 1, State of Colorado. The petitioners own property in the vicinity of Glacier Lake, which is a Boulder city reservoir situated north of Nederland in Boulder County. Injunctive relief was sought by the petitioners to prevent the City of Boulder (Boulder) from draining the reservoir. The allegations in the complaint supported claims predicated on the theory of nuisance and breach of covenant. Boulder moved to transfer the suit to the water court on the grounds that the claims and issues raised in the petitioner's suit would be determined in and are relevant to the action which was then pending in the water court. The district judge, relying on our decision in Perdue v Fort Lyon Canal Co., 184 Colo. 219, 519 P.2d 951 (1974), ordered that the case be transferred to the water court for determination. We issued a rule to show cause, and we now discharge the rule.
The suit then pending in the water court was filed in December of 1974, eight months prior to the institution of petitioners' suit for an injunction. Boulder filed an Application for Approval of a Plan for Augmentation, Including Exchange, in the water court to secure the right to release water from Glacier Lake into Boulder Creek for the use of downstream irrigators. The suit in the water court also sought a ruling on storage rights and the right of Boulder to take water by exchange at other points in the city's Boulder Creek municipal system for various purposes. Prior to ordering the transfer of the petitioners' suit to the water court, the district court in Boulder reviewed the basis for petitioners' claim that the removal of water from Glacier Lake would result in a breach of a covenant running with the land.
Boulder and the petitioners received the deeds to their respective property interests from a common grantor. The deed to Boulder contained the following covenant:
'That party of the second part (the grantee) agrees to keep said reservoir full of water to the capacity awarded by said decree of the District Court when water is available for said purpose, except at such times as party of the second part is drawing water therefrom for irrigation.'
After reviewing this covenant and the pleadings of the parties, the district court concluded:
That the water court has jurisdiction to hear the petitioners' case cannot be contested. Section 37--92--203(1), C.R.S.1973, provides:
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...Ass'n v. Backlund, 908 P.2d 534, 539 (Colo.1996) (stating that water matters concern water use rights); Oliver v. Dist. Court, 190 Colo. 524, 526-27, 549 P.2d 770, 771-72 (1976) (recognizing ancillary jurisdiction in water matters). 4. PCSR filed its notice of appeal on December 27, 2001. S......
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