Case No. 90SA514 Opening Brief for the Appellant

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not demonstrate that Fort Collins performed overt acts complying with these requirements on or before February 18, 1986. a. Adoption of the Land Use Plan does not satisfy the overt act requirement for initiating an appropriation at the Nature Center Diversion Dam. The Land Use Plan and Resolution 86 -32 fail to satisfy any of the purposes of the overt act requirement. With no mention whatsoever of an appropriation of water or the diversion or use of water, with no mention of the Nature Center Diversion Dam, with no directive to City officials to perform the necessary steps to initiate or to make an appropriation, and especially when the study area of the plan does not even include the site of the Nature Center Diversion Dam, the Land Use Plan and resolution can hardly be said to manifest Fort Collins' alleged intent to appropriate 55 c.f.s. for municipal and recreational purposes, to demonstrate a substantial step toward the application of the water right to the claimed beneficial uses, or to provide notice to interested persons of an appropriation at the Nature Center Diversion Dam. Denver supra, 696 P.2d at 747, n. 13. b. The Smith field trip does not satisfy the overt act requirement for initiating an appropriation at the Nature Center Diversion Dam. The field trip of February 1986 is not sufficient to satisfy any of the purposes of the overt act requirement. As discussed above, Mr. Smith testified that he and other Fort Collins' employees made the field trip to "further evaluate" the potential of the site for a diversion dam. Rec.Vo1.III, p.221, 1.20 -25; p.222, 1.1 -4. Fort Collins provided no evidence that it performed a detailed survey of the site or that it left anything at the site to indicate its inspection or that it sought to appropriate a water right. No signs were posted in the area of the proposed dam. Rec.Vol.IH, p.229,1.3-5. Fort Collins left the site untouched and simply took a few photographs 17