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830 P.2d 915, City of Thornton By and Through Utilities Bd. v. City of Fort Collins, (Colo. 1992) Page 8 <br />decree a conditional water right, Fort Collins must <br />prove that the waters sought to be appropriated can <br />and will be diverted, stored, or otherwise captured, <br />possessed, and controlled, and are not a thinly <br />disguised minimum stream flow. Thornton further <br />asserted that Fort Collins must prove that those <br />waters will be applied to beneficial uses, that it had <br />a fixed intent to divert and beneficially use those <br />waters on February 18, 1986, and that it took overt <br />acts sufficient to provide notice of that intent. <br />Finally, Thornton asserted that Fort Collins must <br />prove that the water rights' sought in the 1988 <br />amendments can be reconciled with the water rights <br />sought in the 1986 application. That unappropriated <br />Poudre River water is available is not disputed. <br />Although the NCWCD was a party below, <br />Thornton and Fort Collins were the only parties <br />which participated at trial to the water court in <br />August, 1990. Here, the NCWCD urges affirmance <br />of the water court on both the appeal and the cross - <br />appeal. In its judgment and decree, the water court <br />determined that the 1988 amendments related back <br />to the 1986 application. The water court also found <br />that Fort Collins had provided notice of its intent <br />conditionally to appropriate Poudre River water and <br />that this intent was shown by overt acts, particularly <br />by the formal adoption of the Plan by the Fort <br />Collins city council. The water court found that the <br />water appropriation at the Nature Dam was a <br />diversion and not a minimum stream flow and <br />decreed Fort Collins a conditional Poudre River <br />water right of 55 cfs with an appropriation date of <br />February 18, 1986. However, the water court found <br />that the water appropriation at the Power Dam was <br />not a diversion, but a minimum stream flow, and <br />thus did not decree a conditional Poudre River water <br />right for the Power Dam. <br />Thornton appeals the water court's award of a <br />conditional water right to Fort *922 Collins for the <br />Nature Dam, and Fort Collins cross - appeals the <br />water court's denial of a decree for its claimed <br />conditional water right for the Power Dam. <br />II <br />the meaning of the law. For these reasons, <br />according to Thornton, the water court erred in <br />awarding Fort Collins a conditional Poudre River <br />water right for the Nature Dam with an <br />appropriation date of February 18, 1986. We take <br />each of Thornton's arguments in turn. <br />A <br />In support of its argument that the 1988 <br />amendments cannot relate back to the 1986 <br />application, Thornton offers two grounds. First, <br />Thornton asserts that the 1988 amendments - <br />substantially differ from the 1986 application <br />because the 1986 application sought a minimum <br />stream flow with no diversions while the 1988 <br />amendments sought the converse, namely, two <br />precise diversions with no minimum stream flow. <br />Because of this difference, Thornton adds, no <br />reasonably prudent person can be charged with <br />notice that the water rights claimed in the 1986 <br />application were or could ever be the water rights <br />claimed in the 1988 amendments. Second, Thornton <br />asserts that the 1986 application was patently <br />unlawful because it was an application for a <br />minimum stream flow, contrary to section <br />37- 92- 102(3), 15 C.R.S. (1990). In effect, <br />Thornton argues that an amendment cannot relate <br />back to an unlawful application. <br />For its part, the water court, in deciding that the <br />amendments related back to the original application, <br />did note that the 1988 amendments differed from the <br />1986 application in that the 1986 application stated <br />that there would be no diversions while the 1988 <br />amendments stated that in fact there would be two <br />discrete diversions. Nonetheless, the water court <br />compared the amendments with the original <br />application and found that the applicant was the <br />same, that the source, amount and uses of the water <br />were the same, and that the Nature and Power Dams <br />were structures within the confines of the Corridor. <br />The water court concluded that the 1988 <br />amendments did not expand, but actually narrowed, <br />the 1986 application and that therefore the <br />amendments related back to the original application. <br />In its appeal, Thornton makes three basic <br />arguments: first, that the 1988 amendments cannot <br />relate back to the 1986 application; second, that the <br />evidence presented by Fort Collins does not support <br />an appropriation date of February 18, 1986; and <br />third, that the Nature Dam is not a diversion within <br />[1] In United States v. Bell, 724 P.2d 631 <br />(Colo. 1986), we held that the issue of relation back <br />in water adjudications is governed by the <br />requirements of C.R.C.P. 15(c) so long as those <br />requirements are not inconsistent with procedures <br />provided in the Act. 724 P.2d at 635 -636. The <br />It <br />• <br />• <br />Copyright (c) West Group 1999 No claim to original U.S. Govt. works <br />