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830 P.2d 915, City of Thornton By and Through Utilities Bd. v. City of Fort Collins, (Colo. 1992) Page 12 <br />[13] The relevant measures need not be physical <br />acts in the conventional sense of the term. Because <br />the statute is cast in terms of potentiality, that is, <br />requiring proof that waters can and will be <br />beneficially diverted, possessed or controlled, the <br />relevant measures taken can be either physical acts, <br />as conventionally understood, and /or formal acts. <br />Formal acts include planning which is focused on <br />the appropriation of water, studies undertaken as to <br />whether a water diversion is feasible, specific <br />expenditures of human and financial capital in this <br />planning process, applying for various water <br />permits, and other related legal or quasi -legal filings <br />apart from the conditional water rights application <br />itself. <br />We acknowledge that such formal acts hardly seem <br />to qualify as "open and notorious physical <br />demonstration[s]" of an intent to appropriate water <br />to beneficial use. Fruitland Irrigation Co. v. <br />Kruemling, 62 Colo. 160, 165, 162 P. 161, 163 <br />(1916). The traditional requirement that the overt <br />act(s) be a physical demonstration, however, may no <br />longer fully exhaust the more modem functional <br />approach in which the critical inquiry is whether the <br />relevant act or acts were sufficient to have <br />performed one or more of the three required <br />functions of the first step. See City of Aspen, 696 <br />P.2d at 764. (FN6) Even in Fruitland, we <br />recognized *927 that the first step's primary <br />function is to provide notice to interested parties. 62 <br />Colo. at 165, 162 P. at 163. <br />[ 14] [ 15] In applying this function -based test, we <br />hold that formal acts may qualify as overt acts under <br />the first step test so long as such formal acts <br />perform one or more of the required functions. <br />When a municipality or other public entity is the <br />would -be appropriator, see § 37- 92- 103(8), 15 <br />C.R.S. (1990), relevant formal acts also may <br />include resolutions passed or other official decisions <br />made, again so long as such formal acts are deemed <br />to have performed one or more of the required <br />functions. Cf. Public Service Co. of Colorado v. <br />Blue River Irrigation Co., 829 P.2d 1276, <br />1278 -1279 (Colo.1992) (the following formal acts <br />were evidence of due diligence: meetings with <br />government regulatory bodies, permit applications <br />from regulatory bodies, design and engineering <br />studies, and financial expenditures for related <br />administrative and legal fees). <br />To summarize, the division of the first step into an <br />intent prong and an overt act(s) prong and the <br />required concurrence of the two means that the first <br />step may begin with either the formation of intent or <br />an act which performs one or more of the three <br />required functions. The first step cannot be said to <br />have been taken or completed, however, until the <br />intent has been formed and all three functions have <br />been performed by one or more overt acts, either <br />physical or formal. Thus, the formation of intent <br />and the required overt act or acts may constitute a <br />series of discrete events over time. However, the <br />appropriation date cannot be set before the latest <br />date in that series, which is the date on which it can _ <br />be said that the first step has been taken to <br />appropriate water. <br />[16] To conclude the framework for our analysis, <br />we note that whether the relevant act or acts were <br />sufficiently overt is a "mixed question of law and <br />fact, the resolution of which must be made by the <br />court through the application of a legal standard to <br />the particular facts of the case." Bar 70, 703 P.2d <br />at 1306. That legal standard is of course the <br />performance of one or more of the functions set <br />forth above, recognizing that formal acts may <br />qualify. However, even with the foregoing <br />framework, the "determination whether the requisite <br />first step has been taken [still] must be made on an <br />ad hoc basis, taking into account the particular facts <br />in each case." City of Aspen, 696 P.2d at 761. <br />Finally, as always, the applicant has the burden of <br />proving that a relevant act(s) has performed all of <br />the required three functions and that the first step <br />thereby has been completed on a particular date. <br />Bar 70, 703 P.2d at 1306. <br />2. Applying the First Step Test. <br />With the foregoing analysis in mind, we turn to <br />Thornton's argument that the appropriation date <br />cannot be February 18, 1986, the date decreed by <br />the water court and the date on which Fort Collins <br />adopted the Plan. Thornton argues that filing the <br />amendments on June 1, 1988 "was the first time that <br />Fort Collins demonstrated any kind of intent to <br />divert and appropriate a water right at the Nature <br />Center Diversion Dam by overt acts sufficient to put <br />interested persons on notice of its intended <br />appropriation." Opening Brief for the Appellant at <br />22 n. 15. Thomton's argument here is predicated <br />on the view that the 1986 application manifested an <br />intent to appropriate a minimum stream flow while <br />the 1988 amendments manifested an intent to divert <br />C7 <br />• <br />• <br />Copyright (c) West Group 1999 No claim to original U.S. Govt. works <br />