Case No. 90SA514 Thornton v. Fort Collins

Home Browse Search

V ' 830 P.2d 915, City of Thornton By and Through Utilities Bd. v. City of Fort Collins, (Colo. 1992) Page 17 However, there was no evidence presented at trial that the chute and the ladder have failed to function as designed. Rather, there was some testimonial evidence that the chute and the ladder do function properly under low flow conditions. The record indicates that disputes remain as to whether boats (or kayaks and inner tubes) are allowed to take advantage of the chute, but that fish are using or will use the ladder was not disputed. That the chute and the ladder function as designed means that the water can be controlled such as to be put to recreational and wildlife uses, both beneficial uses under the Act. That the chute and the ladder control and direct river water only at unspecified low flows in the river is not a defect since that is precisely what they are designed to do. We therefore reverse the water court's conclusion that the Power Dam does not effect a diversion within the meaning of the Act. The water court's conclusion that the Power Dam was not a legal diversion precluded the disposition of other issues which would have been addressed had the water court found the Power Dam to be a structure which controlled water within the meaning of the Act. Thus, we remand the claim for Poudre River water at the Power Dam for a conclusive determination as to whether the boat chute and the fish ladder can and will put water to beneficial use. In addition, the water court must make a separate determination of the appropriation date for the Power Dam under the first step test described in Part II B. The act(s) relevant to the determination of the appropriation *933. date for the Nature Dam may or may not be relevant to the determination of the appropriation date for the Power Dam. (FN10) IV Thornton was on notice of the intent by Fort Collins to appropriate a certain amount of water from a sufficiently precise location of the Poudre River by the application for conditional water rights filed by Fort Collins in 1986. The 1988 amendments therefore relate back. However, because passage of the Plan by the Fort Collins city council does not perform the functions of the first step, we reverse setting the appropriation date of February 18, 1986, for the water rights at the Nature Dam, and remand for an application of the first step test according to the principles framed in this opinion. Whatever the appropriation date, we find that the Nature Dam may effect a valid 0 appropriation. Finally, we hold that the Power Dam qualifies as a structure which controls water and thus also may effect a valid appropriation. The appropriation date of the Power Dam diversion and related issues must be determined by the water court according to the views set forth in this opinion. ERICKSON, J., does not participate. FN1. In Bell, we noted that C.R.C.P. 15(c) was identical to Fed.R.Civ.P. 15(c), making commentary on the federal rule relevant. FN2. Actually, as Thornton notes, May 27, 1988, - was the date the 1988 amendments were filed. June 1, 1988, is the date cited by the water court and Fort Collins, and since Fort Collins accepts the later date on this appeal, we will employ that date for the 1988 amendments for purposes of this opinion. FN3. The relation back to the first step for purposes of determining the appropriation date is different from the relation back of amendments to an original application discussed in Part II A. FN4. The reference to physical acts, plural, when explaining the action required to satisfy the first step test does not mean that a single act may not suffice if it satisfies the purposes of the requirement for overt acts. See City of Aspen, 696 P.2d at 763 n. 5. FNS. Acts preceding the formation of the necessary intent and the act manifesting that intent were relevant in Harvey Land & Cattle, 631 P.2d at 1113 (six water wells were in existence before filing - an application which manifested the necessary intent), and in Twin Lakes, 557 P.2d at 828 (ditches of certain capacity constructed prior to formation of the intent to appropriate the additional water allowed by the large capacity of those ditches). FN6. In City of Aspen, one of the parties argued that the second prong of the first step test simply requires giving "notice of the intent to apply water to beneficial use." The opposing party argued that the second prong contemplates an " 'open physical act on the land sufficient to constitute notice to third parties of the intent to apply water to beneficial use.' " 696 P.2d at 761 n. 4. We held only that the overt acts necessary to satisfy the second prong need not take place "on the Copyright (c) West Group 1999 No claim to original U.S. Govt. works