Case No. 90SA514 Opening Brief for the Appellant

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Moreover, the signs posted in December of 1986 and the notices published in December of 1986 and January of 1987 provided notice to the public only of Fort Collins' intent to appropriate in- stream flows within the Poudre. These notices and signs make no mention whatsoever of Fort Collins' alleged intent to divert water, let alone to divert water at the Nature Center Diversion Dam. Even the placement of the signs did not provide notice to others that Fort Collins sought a water right at the Nature Center Diversion Dam, as the closest sign was posted a mile away. Rec.Vo1.IH, p.251, 1.12 -23; p.252, 1.16 -18. These signs and notices provided no notice whatsoever of Fort Collins' alleged intent to appropriate a water right at the Nature Center Diversion Dam. See Denver supra, 696 P.2d at 747. Indeed, the content of the signs and the locations in which they were posted give notice that, as of December 31, 1986, Fort Collins had no intent whatsoever to make a diversion at the site of the Nature Center Diversion Dam. 3. The Nature Center Diversion Dam should be awarded a date of appropriation no earlier than May 27, 1988. The earliest date upon which Fort Collins' intent to appropriate a water right at the Nature Center Diversion Dam co- existed with overt acts sufficient to provide notice to third parties of the proposed appropriation was May 27, 1988. a. The 1986 Application gave notice to the world that Fort Collins was not seeking an appropriation by diversion. Fort Collins may not rely on the original application filed on December 31, 1986, to support a date of appropriation for the Nature Center Diversion Dam. While the filing of an application with the water court may provide the requisite intent to appropriate and an overt act putting others on notice of the proposed appropriation, Twin Lakes supra, 557 P.2d at 828, Fort Collins' original 1986 Application is evidence only of the City's intent to appropriate an in- stream 21