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 9 • • • requirements of C.R.C.P. 15(c) are essentially notice requirements. Transposing the requirements to a water dispute under the Act, for an amendment to relate back to the date of an original water application, the claim(s) in the amendment must arise "out of the conduct, transaction, or occurrence set forth in the original" application. See C.R.C.P. 15(c). Because notice is the essential requisite for a relation back, we hold that since the source, amount and uses of Poudre River water claimed by the 1988 amendments were the same as in the original application, the 1988 water claims are claims arising out of the conduct, transaction or occurrence set forth in the 1986 application. [2] In Bell, the diapositive factor was the source of the water claimed. We denied a relation back in that case because the water source designated in the amendment was different from the water source designated in the original application. 724 P.2d at 639. Because the source of the claimed water differed, no notice was provided by the original application to parties with interests in the water from the new source designated in the amendment. See Park Center Water Dist. v. United States, 781 P.2d 90, 97 -98 (Colo. 1989). Here, in contrast, there is no significant disparity *923 between the 1986 application and the 1988 amendments as to the named source of the water. The water source named and legally described in the 1986 application was that segment of the Poudre River known as the Corridor. The water source named and legally described in the 1988 amendments was the Poudre River at specific points within the Corridor. Thus, the effect of naming the Corridor as the source of the water claimed in the 1986 application was not only to place those parties with interests or potential interests in that segment of the Poudre on notice but also to place those parties with interests or potential interests in specific points within that segment of the Poudre on notice. That the latter were placed on notice is indicated by the fact that no new parties filed statements of opposition to the 1988 amendments. All interested parties were alerted by the 1986 application, and the fact that the notice was perhaps overinclusive is not a defect. Thus, Thornton's argument, that the conceptual difference between a minimum stream flow with no diversions and two discrete diversions with no minimum stream flow precludes a relation back, is not persuasive. Even assuming that a minimum stream flow is of an entirely different legal character than a diversion, it is possible nonetheless that one can be put on notice of another's intent to appropriate a definite amount of water from a sufficiently definite source even when the claimed water right is artlessly or even impermissibly characterized as a minimum stream flow rather than a diversion. Cf. Board of County Comm'rs v. Collard, 827 P.2d 546, 552 (Colo-1992) (when published resume notice suggests that the " , applicants were seeking to appropriate substantial flows of various segments of the named streams, [such] fact alone would raise a red flag (inquiry notice) to any person interested in water in the - subject streams' "); Closed Basin Landowners Ass'n v. Rio Grande, 734 P.2d 627, 633 (Colo-1987) ( "The concept of the Closed Basin Project was not the appropriation of water from many discrete points, but a diversion of water from the entire area. The content of the published resume gave reasonable notice that the points of the proposed diversion would consist of the entire area.... "); City and County of Denver v. Colorado River Water Conservation District, 696 P.2d 730, 751 (Co10.1985) ( "an absence of a precise location [of points of diversion] does not automatically preclude a conditional decree. A would -be appropriator must give some notice to others of the claim upon the water from a particular source to establish a conditional water right; locating the diversion points with absolute specificity is not required. "). Viewed as a reasonably prudent party, Thornton " 'ought to have been able to anticipate or should have expected that the character of the original pleaded claim might be altered or that other aspects of the conduct, transaction, or occurrence set forth in the original pleading might be called into question.' " Bell, 724 P.2d at 638 (quoting 6 Wright & Miller, Federal Practice and Procedure: Civil § 1497 at 498 -99 (1971)). (FN1) [3] We conclude that Thornton was on notice, as of at least December 31, 1986, that Fort Collins intended to appropriate 55 cfs of Poudre River water from within the established limits of the Corridor for municipal, recreational and piscatory purposes. We thus reject Thornton's second ground in support of its argument that the 1988 amendments cannot be found to relate back to the 1986 application, namely, that the 1986 application was of dubious legality. An allegation that a claim for a conditional water - right is illegal because it claims a minimum stream flow speaks to the issue of whether the right claimed should be granted at all, not to the sufficiency of Copyright (c) West Group 1999 No claim to original U.S. Govt. works