Robert Kint Glover, Gerald Kiefer, Marjorie R. Kiefer Marital Trust, Blair A. Kiefer Family Trust, Jane Raeleen Dunn, Friday LLC, and The Estate of Robert Kint Glover, Plaintiffs-Appellants: v. Serratoga Falls LLC Resource Land Holdings LLC Jesse McDowell Town of Timnath Kitchel Lake Development Corporation Kitchel Lake Partners, LLC James Righeimer Lee Lowrey and Kenneth Mitchell. Defendants-Appellees: and Gregory Cucarola, Appellant:, 2021 CO 77

Background

In 2014 Serratoga (developers) began a residential project adjacent to the concrete-lined Kiefer–Glover (KG) Lateral; negotiations with Glover over replacing the open ditch with an underground pipe failed.
Glover filed suit in Water Division 1 (amended complaint alleged 17 claims: declaratory relief about water-use rights/easements plus tort and statutory claims including trespass, nuisance, slander/clouding of title, and alleged criminal-statute violations).
Serratoga asserted counterclaims under Roaring Fork (seeking court approval to alter the ditch) and moved to dismiss many claims; Timnath (town) was added as a party regarding a separate borrow (Prospect) Lateral.
The water court dismissed numerous claims as speculative or unsupported, tried the remaining issues, approved Serratoga’s plan to pipe the KG Lateral (finding no significant diminution of the easement), and awarded Serratoga attorney fees against Glover and his former counsel Cucarola for claims lacking substantial justification.
Glover and Cucarola appealed, arguing lack of water-court jurisdiction, errors on the merits, and abuse of discretion as to the fee award; the Colorado Supreme Court affirmed and awarded Serratoga certain appellate fees.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
1. Subject-matter jurisdiction: whether the water court had jurisdiction over the case (water matters, ancillary jurisdiction, resume notice)	Glover: none of the claims were "water matters"; ancillary jurisdiction therefore improper; also resume (publication) notice was required and absent	Serratoga: claims seeking determinations of scope/quantity/quality/timing are water matters; non-water torts are ancillary and intertwined; King Consol. permits personal service in targeted disputes	Court: Water court had jurisdiction — claims 1,4,5 were water matters (right to use water); ancillary jurisdiction over interrelated tort/statutory claims appropriate; resume notice not required because action was a specific dispute among named water users and personal service sufficed
2. Trespass on KG Lateral easement	Glover: damaged/altered ditch during development constituted unilateral self-help trespass	Serratoga: any damage was accidental, promptly repaired, and they sought court approval (counterclaim) rather than unconsented alteration	Held: dismissal proper — no unilateral alteration/self-help shown; repairs restored capacity and deliveries; Roaring Fork trespass requires evidence of an actual unilateral alteration
3. Prospect Lateral / borrow ditch easement (Kiefer)	Kiefer: had acquired easement rights through use/prescriptive conduct to continue diverting from the borrow ditch	Serratoga/Timnath: right-of-way for Prospect Road (dedicated 1889) precludes adverse possession or prescriptive claim against the municipality	Held: dismissal proper — statute bars acquiring land/water/easement by possession against State/city; Kiefer has no enforceable easement against the town
4. Attorney fees and counsel's due process claim	Glover/Cucarola: fee award improper because claims were justified or counsel entitled to separate findings/hearing before being held jointly/severally liable	Serratoga: many claims were frivolous, unsupported, or dismissed early; statute authorizes fees where actions lack substantial justification; court provided findings and promised/ordered postjudgment briefing on amount/apportionment	Held: no abuse of discretion — record supports finding of claims lacking substantial justification; court's oral findings and orders were sufficient and Rule 121 briefing/hearing on fee amount/apportionment was preserved; appellate fees awarded for frivolous appellate arguments

Key Cases Cited

Roaring Fork Club v. St. Jude's Co., 36 P.3d 1229 (Colo. 2001) (establishes standard for when a burdened owner may alter a ditch easement and when unilateral alteration is trespass)
Kobobel v. Colo. Dept. of Nat. Res., 249 P.3d 1127 (Colo. 2011) (explains water courts’ exclusive jurisdiction over water matters)
In re Tonko, 154 P.3d 397 (Colo. 2007) (defines "water matters" and distinguishes use versus ownership issues)
Crystal Lakes Water & Sewer Ass'n v. Backlund, 908 P.2d 534 (Colo. 1996) (water court may address matters concerning augmentation plans and scope of water rights)
S. Ute Indian Tribe v. King Consol. Ditch Co., 250 P.3d 1226 (Colo. 2011) (permitting personal service instead of resume notice in declaratory actions among named users)
Anderson v. Pursell, 244 P.3d 1188 (Colo. 2010) (standards and review for attorney-fee awards under statutes; abuse-of-discretion review)
Wood Bros. Homes, Inc. v. Howard, 862 P.2d 925 (Colo. 1993) (awarding appellate fees to deter frivolous/egregious appellate conduct)
Sheek v. Brooks, 440 P.3d 1145 (Colo. 2019) (water court lacks ancillary jurisdiction over non-water claims when water matters are dismissed before trial)
Spring Creek Ranchers Ass'n v. McNichols, 165 P.3d 244 (Colo. 2007) (affirming sanctions where counsel pursued repetitive, unsupported claims)