Laserfiche WebLink
"conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading." <br />C.R.C.P. 15(c); United States v. Bell 724 P.2d 631, 636 (Colo. 1986). The conduct, transaction or <br />occurrence set forth in Fort Collins' 1986 Application is unambiguous. See Appendix D, attached <br />hereto. Fort Collins expressly stated that it had no intent to divert water and specifically requested <br />that the court grant it a decree for "in- stream rights." The 1988 Application, on the other hand, <br />sought to appropriate water rights by diversion and expressly removed all references to in- stream <br />rights and flows. See Appendix E, attached hereto. The 1988 Application did not simply narrow the <br />1986 Application as Fort Collins claims. It claimed two water rights of an entirely different character <br />than the in- stream rights claimed by Fort Collins in the 1986 Application. No reasonably prudent <br />person would have anticipated from the 1986 Application that Fort Collins sought to divert water at <br />the Nature Center Diversion Dam. The trial court erred in relating the 1988 Application to divert <br />water at the Nature Center Diversion Dam back to the filing of the 1986 Application for in- stream <br />flows. Id. <br />Furthermore, Fort Collins' 1986 Application was patently unlawful under C.R.S. § 37- <br />92- 102(3). To allow relation back here would impair the long- standing principles of the prior <br />appropriation and postponement doctrines. Based upon Fort Collins' rationale, a user wishing to <br />obtain a water right priority, but lacking the intent to appropriate a specific water right, could lock -in <br />a premature filing date by simply: (1) filing an application for unlawful in- stream rights covering the <br />reach of the river where the user anticipates it may eventually divert water; and then (2) filing an <br />"amendment" to the original unlawful application, withdrawing references to in- stream rights and <br />claiming, instead, diversions at specific points, and claiming that the "amended application" relates <br />back to the original application as a narrowing of the original filing. <br />12 <br />