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Dallas Creek Water Co. v. Huey3/10/1997
by court decrees."); § 37-92-304(8), 15 C.R.S. (1990) (Division and state engineers shall enter in their records the water court judgment and decree "determinations therein made as to priority, location, and use of the water rights and conditional water rights, and they shall regulate the distribution of water accordingly.").
Objectors had notice of the water right at issue and were neither misled nor substantially prejudiced by Willey's action in listing WRIKO as the applicant and then seeking, through counsel, the substitution of Dallas Creek Company. Hard on the heels of the objection period's closure, a law firm made an entry of appearance for Dallas Creek Company, obviously intending to pursue the diligence application on its behalf as the real party in interest. While we believe that the law firm's judgment could have been exercised more appropriately by making the substitution motion earlier, we refuse to penalize the applicant by preventing substitution. "Resume notice requirements . . . do not prohibit an amendment of an application for a water right 'when Justice so requires,' and courts have allowed applicants for water rights to amend applications in the past." United States v. Bell, 724 P.2d 631, 636 (Colo. 1986); see Rules 4, 6, Uniform Local Rules For All State Water Court Divisions, 7B C.R.S. (1996 Supp.) (Water Court Rules).
Inquiry in the case early disclosed that Willey's status as an agent was on behalf of Dallas Creek Company, the user that was actually in possession of the water facilities through which the perfected portion of the water right was being placed to beneficial use. Willey's explanation that he listed himself as agent for WRIKO, because the prior diligence finding was obtained by WRIKO, is understandable given his non-lawyer status. Acting without counsel and using the form supplied by the water court, see § 37-92-302(a), Willey filed the application to ensure that forfeiture of the conditional right would not occur. The fact that WRIKO was the owner of the water right during a part of the diligence period and was the addressee of the water clerk's notice that the application for diligence was due to be filed, see 37-92-305(7), 15 C.R.S. (1990), supports Willey's caution in naming WRIKO, INC.
The water referee system invites and has led to informal practices, which include the filing of applications by those who are not attorneys. "Any person" may file a "verified application." See § 37-92-302(1)(a). "The water Judge must refer all applications and statements of opposition . . . to a water referee," who conducts an "investigation to determine whether the statements in the application are true, and then rules on the application." Gardner, 200 Colo. at 225, 614 P.2d at 359. The referee system, which operates like an administrative proceeding but within a judicial context, offers a speedy alternative to litigation in non-complex water cases:
(4) The referee, without conducting a formal hearing, shall make such investigations as are necessary to determine whether or not the statements in the application and statements of opposition are true and to become fully advised with respect to the subject matter of the applications and statements of opposition. § 32-92-302(4).
Referees can make rulings in water cases which, if not protested, can be approved by the water Judge as a decreed determination without the necessity of trial. See §§ 37-92-303, -304(4), 15 C.R.S. (1990). Whether such a practice is advisable or not, applicants and objectors sometimes file applications or statements of opposition and then seek counsel if the matter becomes contested, as happened here. Nevertheless, corporations properly proceed in litigation thro
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