Case No. 90SA514 Opening Brief for the Appellant

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In order to establish an appropriation, the applicant must show that the water sought will be beneficially used. Mr. Smith conceded that the water right Fort Collins was seeking for the Nature Center Diversion Dam would not give the City any right to demand that water remain in the reach of the river where the claimed uses will occur, and that a diversion could be made by another entity immediately downstream of the dam which would hinder implementation of the beneficial uses. See Appendix H; Rec.Vo1.III, p.239, 1.15 -25; p.240, 1.1 -2. Without the right to assert dominion and control over water in the reach of the river where the claimed beneficial uses will take place, Fort Collins can not demonstrate that the water it seeks to appropriate will be beneficially used. Vidler, supra, 594 P.2d 566; Denver, supra, 696 P.2d 730; Lionelle v Southeastern Colorado Water Conservancy Distri 676 P.2d 1162 (Colo. 1984). The requirements of C.R.S. § 37- 92- 305(9)(b) are not met by the "diversion" of water within the stream channel, where the applicant concedes, and the decree requires, that applicant has no right to control water within the reach of the stream where the claimed beneficial uses must take place. IV. CONCLUSION WHEREFORE, Thornton respectfully requests that this Court reverse the trial court's decree awarding Fort Collins a water right at the Nature Center Diversion Dam, with a date of appropriation of February 18, 1986 and a 1986 filing date, and deny Fort Collins' application. 25 C.R.S. § 37- 92- 305(9)(b) states that no claim for a conditional water right may be recognized: ". . . or a decree therefor granted except to the extent that it is established that the waters can be and will be diverted, stored, or otherwise captured, possessed, and controlled and will be beneficially used and that the project can and will be completed with diligence and within a reasonable time." 30