Opinion
No. 27871
Decided March 20, 1978.
Water court denied petitioner-appellant's request for correction of an amended ruling, to wit, the rights of three springs that are part of a particular water system and which the referee intended to mention but did not mention and which petitioner contends are clerical errors.
Reversed
1. WORDS AND PHRASES — "Clerical Error." The term "clerical error" must not be taken in too narrow a sense; it includes not only errors made by the clerk in entering the judgment, but also those mistakes apparent on the face of the record, whether made by the court or counsel during the progress of the case, which cannot reasonably be attributed to the exercise of judicial consideration or discretion.
2. WATER RIGHTS — "Clerical Error" — Three Springs — Failure to Include — Amended Ruling — Reversed and Remanded. Where both parties agreed that "clerical error" — the rights of three springs that are part of a particular water system and which referee intended to mention but did not mention in his amended ruling — could not be reasonably attributed to the exercise of judicial discretion, held, under such circumstances, the ruling of the water court is reversed and remanded to it with directions to correct the ruling confirmed by it on October 23, 1973 so that it expresses those matters omitted by the referee and intended by him to have been included.
Appeal from the Water Court in and for Division No. 4, Honorable Fred C. Calhoun, Judge.
Yegge, Hall Evans, Michael D. White, David F. Jankowski, for petitioner-appellant.
J. D. MacFarlane, Attorney General, David W. Robbins, Deputy, Edward G. Donovan, Solicitor General, Gregory J. Hobbs, Jr., First Assistant, James E. Thompson, Assistant, for respondent-appellee.
In a proceeding supplementary to the granting of certain conditional water rights, the referee made an amended ruling in which he intended to mention, but did not mention, the rights of three springs which are a part of the Boomerang Water System, namely, Nelson Springs, Jennings No. 1 Spring and Jennings No. 2 Spring. The amended ruling was confirmed by the water court on October 23, 1973.
Approximately 3 1/2 years later, the petitioner-appellant, The Telluride Company, who is the claimant to the rights of the Boomerang Water System, discovered the omissions. Shortly thereafter, it petitioned the court to correct the omissions as clerical errors. There was before the water court the referee's affidavit of May 31, 1977 to the effect that the three springs were intended to be treated in the amended ruling as they had been in the original ruling. The court denied the request.
The denial of the petition was predicated upon the water court's conclusion that a petition to correct substantive errors must be filed within three years of the date of the judgment and must be predicated upon a showing of mistake, inadvertence or excusable neglect under section 37-92-304(10), C.R.S. 1973; that a substantive, and not a clerical, error was involved; and that the omission by the referee and the failure of the water court and attorneys to discover the error, did not constitute mistake, inadvertence or excusable neglect as contemplated by law.
[1] After a motion for new trial was denied, The Telluride Company appealed. It quotes Bessemer Irrigating Ditch Co. v. West Pueblo Ditch Reservoir Co., 65 Colo. 258, 176 P. 302 (1918):
"'The term "clerical error" as here used must not be taken in too narrow a sense. It includes not only errors made by the clerk in entering the judgment, but also those mistakes apparent on the face of the record, whether made by the court or counsel during the progress of the case, which cannot reasonably be attributed to the exercise of judicial consideration or discretion.'"
See West Pueblo Ditch Reservoir Co. v. Bessemer Irrigating Ditch Co., 72 Colo. 224, 210 P. 601 (1922).
[2] The Attorney General, appearing for the respondent-appellee, agrees with the position asserted by The Telluride Company. It cites Bessemer Irrigating Ditch Co., supra, and section 37-92-304, C.R.S. 1973 and states: "Based on the facts, we conclude that the error cannot be reasonably attributed to the exercise of judicial discretion."
We, therefore, reverse the ruling of the water court of July 26, 1977 and remand the matter to it with directions to correct the ruling confirmed by it on October 23, 1973 so that it expresses those matters omitted by the referee and intended by him to have been included.
MR. JUSTICE GROVES does not participate.