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Case No. 90SA514 Opening Brief for the Appellant
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Case No. 90SA514 Opening Brief for the Appellant
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6/24/2010 12:21:26 PM
Creation date
6/11/2010 2:58:18 PM
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Water Supply Protection
Description
Fort Collins and Thorton 86CW371
State
CO
Basin
South Platte
Water Division
1
Date
5/6/1991
Author
Michael D. White, Bruce D. Bernard, Teri L. Petitt
Title
Case No. 90SA514 Opening Brief for the Appellant
Water Supply Pro - Doc Type
Court Documents
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The language of the Land Use Plan and Resolution 86 -32 is even more broad than <br />that relied upon by the applicant in Denver The evidence presented by Fort Collins fails to <br />establish that Fort Collins had formed a specific plan or intent to appropriate any kind of water <br />right, let alone those decreed in the court below. Id.; Water Supply and Storage Compan—v. <br />Curtis 733 P.2d 680, 684 (Colo. 1987). Not one word is mentioned in the Land Use Plan or the <br />resolution of a plan, intent, desire or need to appropriate a water right or to divert and use water <br />for the Land Use Plan -- let alone an intent, desire or need to appropriate the specific water rights <br />at issue here. <br />b. The Smith field trip is not evidence that Fort Collins had formed the <br />intent to appropriate a water right at the Nature Center Diversion Dam as <br />of February 18, 1986. <br />Mr. Smith testified that he made a field trip in February of 1986 to the site of what <br />is now known as the Nature Center Diversion Dam. Rec.Vo1.III, p.221,1.20-25; p.222, I.I. Mr. <br />Smith testified that the purpose of the field trip was "to go out to the site and further evaluate the <br />potential of building the diversion dam." Rec.Vol.III, p.222,1.2-4. <br />This field trip is not sufficient to establish that Fort Collins had formed the requisite <br />intent as of February 18, 1986 to appropriate a water right at the Nature Center Diversion Dam. <br />In Fruitland supra 162 P. at 163, this Court held that reconnaissance and preliminary work at a <br />potential appropriation site was not sufficient to establish that the applicant had formed the intent <br />required to appropriate a water right. Furthermore, in Elk -Rifle Water Company v. Templeton <br />?The applicant in Fruitland claimed a date of appropriation of May 26, 1900, based upon personal observations of <br />the site, $5.00 worth of work on or near the proposed site, and even a survey of undetailed nature to "verify the practical <br />possibilities of the undertaking." Id. at 162. The Colorado Supreme Court held: "The grantors of the plaintiff in error <br />did not even entertain an intent which would satisfy the law when on the 21st day of May 1900, they visited the premises <br />and then and there determined to initiate and ultimately perfect rights by virtue of their irrigation project. The right, as <br />well as the intent necessary to acquire it, has its foundation in practical considerations. There is little doubt that if, upon <br />the completion of the preliminary survey and reconnaissance, the project proved utterly impracticable and unwarranted as <br />12 <br />
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