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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
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Water Supply Protection
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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
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173 Colo. 438, 484 P.2d 1211, 1215 (1971), this Court held that, even though the applicant had <br />visited the proposed diversion site, the necessary fixed intent to appropriate the water right had <br />not been formed until the applicant had actually determined to proceed with the specific project. <br />See Four Counties Water Users Association v. Colorado River Water Conservancy District, 161 <br />Colo. 416, 425 P.2d 259, 262 (1967), US cent. denied, 389 U.S. 1094 (1968). <br />The very fact that the purpose of the trip was to "further evaluate" whether to build <br />the dam clearly demonstrates that Fort Collins did not have a specific plan and intent, nor a fixed <br />purpose to diligently pursue, an appropriation at the Nature Center Diversion Dam at the time of <br />the field trip. Mr. Smith testified that as of February 1986, Fort Collins had not made the <br />decision to construct the Nature Center Diversion Dam. Rec.Vol.III, p.228,1.24-25; p.229, 1.1- <br />2. According to Mr. Smith, the decision to actually pursue construction of the Nature Center <br />Diversion Dam was not made until "a couple of months" after the field trip and after the Land <br />Use Plan was adopted: <br />If I recall properly, within the next couple of months or maybe three months after <br />that [February 1986], we more or less decided, saying the [Nature Center] diversion <br />dam is the option we're going to pursue. <br />Rec.Vol.III, p.222, 1.13 -16. Mr. Smith later testified that this decision was merely his personal <br />decision. Rec.Vol.ILI, p.229, 1.6 -19. Mr. Smith could not even recall whether he discussed his <br />decision to pursue construction of the Nature Center Diversion Dam with his superior. <br />a business venture, the present dispute would never have arisen. Therefore, the most that can be fairly assumed is that <br />they determined on that date to construct a reservoir and ditches if it should prove practical and feasible to do so. This <br />fact could only be ascertained by examining the topography of the surrounding country and verifying such observations by <br />actual survey, and undoubtedly until this had been done there was not, and in the very nature of things could not have <br />been, any definite and fixed intent to proceed further. The law does not permit an intending appropriator to invoke the <br />benefit of remote contingencies to unduly extend the doctrine of relation [Emphasis added] Id. at 163. <br />8 "Q: Is it correct to say you had not -- the City had not made a decision to construct the Nature Center Dam as <br />of February of 1986? A: I think that's a fair statement." <br />13 <br />
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