Case No. 90SA514 Opening Brief for the Appellant

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Id. at 1307 -8. With respect to the second purpose, to demonstrate the taking of a substantial step toward the application of water to beneficial use, the Court stated: While we have held that a detailed field survey under appropriate circumstances can fulfill the substantial step requirement, [citations omitted], Tosco's field crew did not conduct a field survey at all, but simply hiked along most of the route of the proposed pipeline and never visited the site of the pumping station. As previously noted, the field trip was admittedly in the nature of preliminary activity and, as such, was far short of constituting a substantial step toward applying water to a beneficial use. Id. at 1308. Finally, with respect to the third purpose, to constitute notice to interested persons of the nature and extent of the proposed demand upon the water supply, the Court stated: Tosco's field crew visited the general site of the proposed Miller Creek diversion only once, leaving nothing there that would indicate their inspection or the nature and purpose of their trip. No survey stakes or lines were set, no signs were posted near the site of the proposed diversion, and no notices were filed in local newspapers. The field crew's activities, which consisted of taking notes and photographs, were not sufficient to alert any person who might fortuitously have been present at or near the site of the nature and scope of Tosco's contemplated diversion; nor, for that matter, were they sufficient to place an observer even on inquiry notice of Tosco's intent to appropriate any water at all. Indeed, if preliminary reconnaissance work of this type is permitted to satisfy the overt acts requirement, the notice function of that requirement for all practical purposes would be eliminated. [Emphasis added] Id. As in Fruitland and Bar 70 Enterprises the field trip by Fort Collins in 1986 to the site of what is now the Nature Center Diversion Dam completely fails to satisfy any of the purposes of the overt acts requirement. Simply taking photographs of a proposed diversion site is insufficient to fulfill the overt act requirement. Bar 70 Enterprises supra, 703 P.2d at 1308; Bunger v. Uncompahgre Valley Water Users Association 192 Colo. 159, 557 P.2d 389, 395 (1975). Like the applicant in Bar 70 Enterprises Fort Collins admitted that the field trip was simply part iT