Case No. 90SA514 Thornton v. Fort Collins

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830 P.2d 915, City of Thornton By and Through Utilities Bd. v. City of Fort Collins, (Colo. 1992) Page 1 • • • *915 830 P.2d 915 The CITY OF THORNTON, Acting By and Through its UTILITIES BOARD, Objector - Appellant /Cross - Appellee, V . The CITY OF FORT COLLINS, Applicant - Appellee /Cross - Appellant, and the Cache La Poudre Water Users Association, Northern Colorado Water Conservancy District, Saint Vrain and Left Hand Water Conservancy District, Colorado Water Conservation Board, the City of Greeley, the State Engineer and the Division Engineer, Water Division 1, and the Henrylyn Irrigation District, Objectors - Appellees. No. 90SA514. Supreme Court of Colorado, En Banc. April 20, 1992. City brought action opposing conditional water rights application. The District Court, Water Division No. 1, Connie L. Peterson, J., determined that amendments to application related back to original application, and decreed conditional water right with respect to one of applicant's dams, but denied conditional water right for the other. City appealed and applicant cross - appealed. The Supreme Court, Mullarkey, J., held that: (1) amendments to application related back to date of original application; (2) determination of appropriation date with respect to first dam was incorrect; and (3) second dam qualified as structure which controls water and thus might effect valid appropriation. Affirmed in part and reversed in part and remanded. 1. WATERS AND WATER COURSES (&= 139 405 - - -- 405VI Appropriation and Prescription 405k139 Time of vesting of rights under appropriation. Colo. 1992. For purposes of determining whether amendments to conditional water rights application related back to date of original application, claims made in amended application for conditional water rights were claims arising out of conduct, transaction, or occurrence set forth in original application where source, amount, and uses of river water claimed by amendments were same as in original application. Rules Civ.Proc., Rule 15(c). 2. WATERS AND WATER COURSES(= 152(5.5) 405 - - -- 405VI Appropriation and Prescription 405k152 Actions to Determine, Establish, and Protect Rights 405k152(5.5) Process or notice. Formerly 405kl52(51/2) Colo. 1992. Conditional water rights application which named river recreation corridor as source of water claimed effectively placed on notice those parties with interests or potential interests within that segment of river or in specific points within that segment of river, even though original application sought minimum stream flow with no diversions while amended application sought two precise diversions with no minimum stream flow; one can be put on notice of another's intent to appropriate a definite amount of water from sufficiently definite source even when claimed water right is artlessly or even impermissibly characterized as minimum stream flow rather than diversion. WATERS AND WATER COURSES ( 9=139 405 - - -- 405VI Appropriation and Prescription 405k139 Time of vesting of rights under appropriation. Colo. 1992. Amendments to conditional water rights application related back to original application, even though original application claimed minimum stream flow with no diversions while amendments sought two precise diversions with no minimum stream flow, where amendment arose out of conduct, transaction, or occurrence set forth in original application, and all parties with interests of segment of river which was subject of original application were placed on _notice of applicant's intent to appropriate definite amount of water from that segment of river. Rules Civ.Proc., Rule 15(c). Copyright (c) West Group 1999 No claim to original U.S. Govt. works