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 3 • Colo. 1992. Under statute which requires applicant for conditional water right to establish that water can and will be diverted or controlled and beneficially used, establishing that waters can be diverted or controlled would entail some showing that certain measures toward application of waters to beneficial use either have been taken before application was filed or at least before trial. West's C.R.S.A. § 37- 92- 305(9)(b). 12. WATERS AND WATER COURSES (�` = 139 405 - - -- 405VI Appropriation and Prescription 405k139 Time of vesting of rights under appropriation. Colo. 1992. Relevant measures offered as evidence under statute requiring applicant for conditional water right to establish that water can and will be diverted and controlled for beneficial use also may be relevant for purposes of showing, under "first step test," that function of taking substantial step toward application of water to beneficial use has been performed. West's C.R.S.A. § 37- 92- 305(9)(b). 13. WATERS AND WATER COURSES (&-135 405 - - -- 405VI Appropriation and Prescription 405k135 Diligence in completion of works or application of water to use. Colo. 1992. Under statute requiring applicant for conditional water right to establish that water can and will be diverted and controlled for beneficial use, relevant measures taken by applicant can be either physical acts and /or formal acts; "formal acts" include planning which is focused on appropriation of water, studies undertaken as to whether water diversion is feasible, specific expenditures of human and financial capital in planning process, applying for various water permits, and other, related legal or quasi -legal filings apart from conditional water rights application itself. West's C.R.S.A. § 37- 92- 305(9)(b). appropriation. Colo. 1992. "Formal acts" may qualify as "overt acts" under "first step test" for appropriation of conditional water right so long as such formal acts perform one or more of the test's required functions. 15.WATERS AND WATER COURSES C2�=139 405 - - -- 405VI Appropriation and Prescription 405k139 Time of vesting of rights under appropriation. Colo. 1992. When municipality or other public entity is would - be appropriator of conditional water right, "formal acts" relevant under "first step test" may include resolutions passed or other official decisions made, so long as such formal acts are deemed to have performed one or more of the test's required functions. West's C.R.S.A. § 37 -92- 103(8). 16. WATERS AND WATER COURSES <2�= 152(6) 405 - - -- 405VI Appropriation and Prescription 405k152 Actions to Determine, Establish, and Protect Rights 405kl52(6) Presumptions and burden of proof. Colo. 1992. Applicant for appropriation of conditional water right has burden of proving that relevant act performed all of the required three functions under "first step test" and that first step has thereby been completed on particular date. 17. LIMITATION OF ACTIONS 124 241 - - -- 241II Computation of Period of Limitation 241II(H) Commencement of Proceeding; Relation Back 24lk124 Intervention or bringing in new parties. Colo. 1992. Relation back of amendments to original pleadings means only that third parties were in fact on adequate notice as of date of original pleading. • See publication Words and Phrases for other judicial constructions and definitions. 14. WATERS AND WATER COURSES (&; -139 405 - - -- 405VI Appropriation and Prescription 405kl39 Time of vesting of rights under 18.WATERS AND WATER COURSES 0139 405 - - -- 405VI Appropriation and Prescription 405k139 Time of vesting of rights under appropriation. Colo. 1992. Formal adoption of land use policy plan by Copyright (c) West Group 1999 No claim to original U.S. Govt. works