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determine whether the Tonkos had or could obtain an adjudicated water right, a requisite <br />to obtaining a ditch right -of -way. The Tonkos initiated an action in Water Court seeking <br />confirmation of their water use rights. The Water Court dismissed the application with <br />prejudice, ruling that the Tonkos had the opportunity to litigate their water use rights in <br />district court and had lost The Supreme Court reversed, finding that the district court <br />properly ruled that it lacked subject matter jurisdiction to adjudicate the Tonkos' water <br />use rights; thus, the Water Court erred in finding that the Tonkos had a full and fair <br />opportunity to litigate their claimed entitlement to a water use right. <br />This decision is relatively straightforward. However, in reaching its decision, the <br />Court does provide a useful overview of Colorado law pertaining to ditch rights -of -way, <br />issue preclusion, and changes of water rights. Most notably, the court stresses that "water <br />use at a place other than that anticipated by the original decree can be used to establish <br />historic use in a change proceeding only if the change is inconsequential and there is no <br />question of enlargement or abandonment." <br />6) Spring Creek Ranchers Ass'n v. McNichols, 165 P.3d 244 (Colo. 2007), June <br />25, 2007 <br />The Supreme Court affirmed Senior Judge Ossola's decision in Water Division 5 <br />to award attorney fees to Spring Creek Ranchers Association and to allow Judge Petre to <br />recuse himself from hearing this case. The Appellants challenged Judge Petre's recusal <br />because he had not provided an explanation for the recusal on the record. The Supreme <br />Court presumed that Judge Petre had recused himself because he had been the water <br />referee who had made the order the McNichols and another homeowner were protesting. <br />However, the Court found that there is no requirement that a judge disclose on the record <br />the basis of the judge's disqualification and seek remittal of the disqualification. The <br />Court also found that Judge Petre had not abused his discretion in recusing himself. As <br />to attorney fees, the Court affirmed Judge Ossola's finding that the Appellants had been <br />stubbornly litigious by continuing to relitigate a settled issue against the water court's <br />warning. The water court had found that Appellants' repetitive arguments lacked <br />substantial justification and lengthened the water court proceeding. <br />7) The Fort Lyon Canal Company v. High Plains A &M, LLC, 167 P.3d 726 <br />(Colo. 2007), September 10, 2007 <br />The Fort Lyon Canal Company had sought an order from the water court <br />declaring certain of its stockholders liable, by authority of the company's bylaws, for fees <br />and costs the company incurred as an objector to the stockholders' earlier application for <br />a change of water rights. The Supreme Court affirmed the water court's decision that the <br />unambiguous language of the company's bylaws extends liability to stockholders seeking <br />a change of water right only for the legal and engineering expenses incurred by the <br />company's board in determining whether and upon what conditions to approve the <br />stockholders' requested changes. The by -laws did not extend liability to the stockholders <br />for the board's additional costs and fees incurred in defending the board's decision in <br />subsequent legal proceedings. <br />4 <br />