BOARD01483

• Board Meeting Date: 7/24/2000
• Description: ISF Section - Recreational Instream Flows - Policy Discussion
• Board Meetings - Doc Type: Memo

,

830 P.2d 915, City of Thornton By and Through Utilities Bd. v, City of Fort Collins, (Colo. 1992)

Page 1

*915 830 P.2d 915

-.

The CITY OF THORNTON, Acting By and
Through its UTILITIES
BOARD, Objector-AppellantlCross-Appellee,
v.
The CITY OF FORT COLLINS, Applicant-
Appellee/Cross-Appellant,
and
the Cache La Poudre Water Users Association,
Northern
Colorado Water Conservancy District, Saint
Vrain and Left
Hand Water Conservancy District, Colorado
Water Conservation
Board, the City of Greeley, the State Engineer and
the
Division Engineer, Water Division 1, and the
Henrylyn
Irrigation District, Objectors-Appellees.

No. 9OSA514.
Supreme Court of Colorado,
En Banc.

April 20, 1992.

-

City brought action opposing conditional water
rights application. The District Court, Water
Division No.1, Connie L. Peterson, J., determined
that amendments to application related back to
original application, and decreed conditional water
right with respect to one of applicant's dams, but
denied conditional water right for the other. City
appealed and applicant cross-appealed. The
Supreme Court, Mullarkey, J., held that: (1)
amendments to application related back to date of
original application; (2) determination of
appropriation date with respect to first dam was
incorrect; and (3) second dam qualified as structure
which controls water and thus might effect valid
appropriation.

Affirmed III part and reversed in part and
remanded.

1. WATERS AND WATER COURSES €::=>139
405
405VI Appropriation and Prescription
405k139 Time of vesting of rights under
appropriation.
Colo. 1992.
For purposes of determining whether amendments

.

to conditional water rights application related back
to date of original application, claims made in
amended application for conditional water rights
were claims arising out of conduct, transaction, or
occurrence set forth in original application where
source, amount, and uses of river water claimed by
amendments were same as in original application.
Rules Civ.Proc" Rule 15(c).

2. WATERS AND WATER COURSES€::=>
152(5,5)
405
405VI Appropriation and Prescription
405k152 Actions to Determine. Establish. and
Protect Rights
405kI52(5.5) Process or notice.

Formerly 405kI52(51/2)
Colo. 1992.
Conditional water rights application which named
river recreation corridor as source of water claimed
effectively placed on notice those parties with
interests or potential interests within that segment of
river or in specific points within that segment of
river, even though original application sought
minimum stream flow with no diversions while
amended application sought two precise diversions
with no minimum stream flow; one can be put on
notice of another's intent to appropriate a defInite
amount of water from sufficiently definite source
even when claimed water right is artlessly or even
impermissibly characterized as minimum stream
flow rather than diversion.

3. WATERS AND WATER COURSES €::=>139
405
405Vl Appropriation and Prescription
405k139 Time of vesting of rights under
appropriation.
Colo. 1992.
Amendments to conditional water rights
application related back to original application, even
though original application claimed minimum stream
flow with no diversions while amendments sought
two precise diversions with no minimum stream
flow, where amendment arose out of conduct,
transaction, or occurrence set forth in original
application, and all parties with interests of segment
of river which was subject of original application
were placed on notice of applicant's intent to
appropriate definite amount of water from that
segment of river. Rules Civ.Proc., Rule l5(c).

Copyright (c) West Group 1999 No claim to original U.S. Gov!. works