JUDICIAL DEVELOPMENTS

May 2007

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Colorado Supreme Court Arguably Rules That an Adjudicated Water Right Is a Prerequisite for Maintaining a Ditch Condemnation Proceeding in District Court
Tonko v. Mallow

In this case, the Colorado Supreme Court ruled that the Water Court erred when it dismissed a change of water rights case based on issue preclusion (i.e., relitigation of a legal or factual matter already decided in a prior proceeding) from a related District Court condemnation case. The Supreme Court agreed with the District Court’s ruling that it did not have subject matter jurisdiction to adjudicate water rights and that adjudicated water rights were prerequisites for maintaining a ditch right-of-way condemnation proceeding in District Court. Since the Water Court applicants did not have a full and fair opportunity to litigate their water entitlements under an existing decree and deed in the condemnation proceeding, they were not issue precluded from litigating their entitlements in Water Court. If ultimately the Water Court confirmed the applicants’ water rights, then the applicants could proceed with a ditch rightof-way condemnation before the District Court.