The Luskin Daughters 1996 Trust v. YoungAnnotate this Case
The Luskin Daughters 1996 Trust for the benefit of Lyndell Joy Luskin Ackerman, appealed a water court order dismissing its complaint for declaratory and injunctive relief, as well as for damages. The complaint alleged that the Trust and Steve and Heather Young owned adjacent parcels of land; that in 2017 the Youngs built a house that destroyed one or more ditches that had historically delivered spring water to the Trust’s property; and that those water rights had been used on the Trust’s property for purposes of irrigation, animal watering, wildlife, and recreation. The water court concluded that in the absence of an application for the determination of a water right, the Trust’s claim of interference by the Youngs with its unadjudicated appropriative rights to springs that arose on the Youngs’ land could not proceed before the water court. It therefore granted the Youngs’ motion, pursuant to C.R.C.P. 12(b)(1), (2), or (5), to dismiss. The Colorado Supreme Court found that while appropriation by diverting a specific amount of water and applying it to a beneficial purpose may entitle the appropriator to adjudicate a water right, according to the provisions of the applicable Colorado water law, it cannot afford a priority of use, even with respect to another specific user, without formal adjudication of a water right, in a specific amount, for a specific purpose, and relative to a specific structure for diversion. Therefore, the Court concluded the water court did not err in dismissing the Trust’s complaint.