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
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