Reply Brief and Response Brief of Appleant, City of Thornton

• Description: Fort Collins and Thornton 86CW371
• State: CO
• Basin: South Platte
• Water Division: 1
• Date: 7/27/1991
• Author: Michael D. White, Bruce D. Bernard, Teri L. Petitt
• Title: Reply Brief and Response Brief of Appleant, City of Thornton
• Water Supply Pro - Doc Type: Court Documents

formally adopted Chapter Two of the Land Use Plan on February 18, 1986, does not mention any
intent or plan by Fort Collins to appropriate, divert or use water, and therefore fails to illustrate any
intent by Fort Collins to appropriate water on February 18, 1986. Ex. A -8, attached hereto as
Appendix C.
Although the testimony of two Fort Collins witnesses established that the decision to
construct the Nature Center Diversion Dam was not made until, at the earliest, some sixty to ninety
days after February 18, 1986, Fort Collins claims repeatedly throughout its brief that it intended to
appropriate the water sought herein on February 18, 1986, and that it "interpreted" the Land Use
Plan as a directive from the Fort Collins City Council to appropriate these water rights. Fort Collins
argues that the mere fact that the Nature Center Diversion Dam is located outside of the study area
of the Land Use Plan is not important because the plan was "interpreted" by City staff as a directive
to enhance and preserve flows in the Poudre River -- apparently including portions of the river not
even addressed by the Land Use Plan. Fort Collins Brief, pp. 12, 13, 14.
Fort Collins' argument ignores the fact that the "first step" upon which a date of
appropriation is based requires the concurrence on that date of an intent to appropriate and an overt
act providing notice of that intent to others. Twin Lakes supra, 557 P.2d at 828. As stated in
Fruitland Irriliation Company v Kruemling supra, 162 P. at 163:
The matter does not rest upon the intent of the claimant, but rather upon such
outward physical acts and manifestations in pursuance of such intent as may be
deemed sufficient to constitute notice to all who may come.
3 Terry Robinson testified that the decision to construct the dam was made sometime in late 1987 or early 1988.
Rec.Vol.III, p. 158, 1. 24 -25; p. 159, 1. 1. Michael Smith testified that the decision to construct the dam was made sixty to
ninety days after the February 1986 reconnaissance field trip. Rec.Vol.III, p. 229,1.6 -11. Mr. Smith also acknowledged that
he responded to a Thornton interrogatory stating that this decision was made two years later, in April of 1988. Rec.Vol.I1I,
p. 231, 1. 1 -16.
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