This appeal marks the fourth time that Dennis O'Neill (O'Neill) has been before this court concerning matters related to six water rights decreed in 1912 to three ditches: the Cache Creek, Arlington, and Clear Creek Ditches. In Southeastern Colorado Water Conservancy District v. Twin Lakes Associates, Inc., 770 P.2d 1231 (Colo.1989) (O'Neill I), this court affirmed the water court's determination that these water rights had been abandoned. In Southeastern Colorado Water Conservancy District v. O'Neill, 817 P.2d 500 (Colo.1991) (O'Neill II), this court affirmed the water court's denial of O'Neill's motion pursuant to C.R.C.P. 60(b)(5) alleging newly discovered evidence. Most recently, in Southeastern Colorado Water Conservancy District v. Cache Creek Mining Trust, 854 P.2d 167 (Colo.1993) (O'Neill III), we affirmed the water court's ruling rejecting O'Neill's claim that opposing parties had committed fraud upon him and the court. Additionally, we found O'Neill's third attempt at litigation before this court to be frivolous, and we remanded the case to the water court to assess attorney fees against O'Neill. See O'Neill III, 854 P.2d at 178.
Once again, O'Neill is before this court attempting to revive the six abandoned water rights by claiming that the water court in O'Neill I lacked jurisdiction to determine whether the water rights had been abandoned. And once again, we reject O'Neill's claims. We affirm the water court's judgment dismissing O'Neill's complaint, and because O'Neill has brought another claim that lacks substantial justification, we affirm the water court's award of attorney fees, grant attorney fees for defending this appeal to appellee, and remand this case to the water court for determination of the amount of fees due.
These six water rights were appropriated prior to the turn of the century, and they were decreed on March 18, 1912, to Twin Lakes Placers, Limited, a British corporation licensed to do business in Colorado. On June 24, 1912, an injunction was entered against Twin Lakes because their large-scale hydraulic mining process polluted the Arkansas river, rendering the water unfit for human consumption. Consequently, these six water rights were abandoned. See O'Neill I, 770 P.2d at 1240.
On successive occasions, O'Neill has tried to employ various legal theories to revive these abandoned water rights. This time, O'Neill filed this action against the state engineer, seeking an injunction and damages regarding these water rights because the water court in O'Neill I lacked subject matter jurisdiction. O'Neill contends that O'Neill I is void because of defective service of process and because the O'Neill I court's judgment represented a collateral attack on the possessory and use rights previously determined by various prior quiet title decrees in 1916, 1930, 1954, and 1957.
In evaluating a motion to dismiss under C.R.C.P. 12(b)(5)
Prior to our decision affirming the water court in O'Neill I, the water court expressly found that it had subject matter jurisdiction. O'Neill was a party to that proceeding, and he had a full and fair opportunity to litigate that issue in the water court as well as when he appealed in O'Neill I. Because there is no manifest injustice presented here, O'Neill is barred from asserting his jurisdictional claims. As the United States Supreme Court stated:
Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 n. 9, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982) (citations omitted).
Litigation that lacks substantial justification burdens the courts, strains the judicial system, and interferes with the effective administration of justice. See § 13-17-101, 5 C.R.S. (1997). Pursuant to section 13-17-102, 5 C.R.S. (1997), attorney fees are warranted in such a case if the action is "substantially frivolous, substantially groundless, or substantially vexatious." Id.; see also O'Neill III, 854 P.2d at 177; Engel v. Engel, 902 P.2d 442, 446 (Colo.App.1995) (stating that a vexatious claim includes conduct that is abusive or stubbornly litigious). This case more than meets that definition. We affirm the water court's award of attorney fees, and we hold that the appellee is entitled to attorney fees for defending this appeal. See § 13-17-102; C.A.R. 38(d). The amount of such fees is to be determined by the water court on remand.
Justice KOURLIS does not participate.