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
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