BOARD01483

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

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

4, WATERS AND WATER COURSES <%=139
405
405VI Appropriation and Prescription
405k139 Time of vesting of rights under
appropriation,
Colo. 1992.
Concurrence of intent and overt acts qualifies as
"first step" toward appropriation of water, and date
upon which first step is taken determines date of
appropriation.

5. WATERS AND WATER COURSES <%=139
405
405VI Appropriation and Prescription
405k139 Time of vesting of rights under
appropriation,
Colo. 1992,
Act which manifests necessary intent to
appropriate water to beneficial use, or which
demonstrates taking of substantial step toward
application of water to beneficial use, or which
constitutes notice to interested parties of nature and
extent of proposed demand upon water supply is
"overt act" for purposes of "first step test" for
appropriation of conditional water right; single act
need not perform all three functions, as long as all
three functions are performed by some act or acts.

See publication Words and Phrases for other judicial
constructions and definitions.

6. WATERS AND WATER COURSES <%=139
405
405VI Appropriation and Prescription
405k139 Time of vesting of rights under
appropriation,
Colo. 1992.
For purposes of "first step test" for appropriation
of conditional water right, act which manifests
necessary intent to appropriate water to beneficial
use satisfies manifest intent function of oven act
prong, as well as intent prong of test.

7. WATERS AND WATER COURSES <%=139
405
405VI Appropriation and Prescription
405k139 Time of vesting of rights under
appropriation.
Colo. 1992.
Under first step test for appropnal1on of
conditional water right, if relevant act precedes
formation of necessary intent, then that act cannot
be deemed to have performed first required function

Page 2

of manifesting necessary intent; however> act
preceding both formation of necessary intent and act
manifesting that intent may be relevant because that
act may be deemed to have performed either or both
of remaining required functions: demonstration of
substantial step toward application of water to
beneficial use, and notice to interested parties of
nature and extent of proposed demand upon water
supply.

.

8. WATERS AND WATER COURSES ~139
405
405VI Appropriation and Prescription
405kl39 Time of vesting of rights under
appropriation.
Colo. 1992.
"First step" toward appropriation of conditional
water right can never be completed before formation
of necessary intent, and appropriation date of
conditional water right cannot be set earlier than
formation of requisite intent and act which manifests
that intent.

9. WATERS AND WATER COURSES ~139
405
405VI Appropriation and Prescription
405k139 Time of vesting of rights under
appropriation.
Colo, 1992,
Filing application for conditional water right may
constitute evidence that necessary intent to
appropriate water has been formed, and if so, filing
also was relevant act which performed first required
function of manifesting necessary intent,

..

IO.WATERS AND WATER COURSES ~139
405
405VI Appropriation and Prescription
405kl39 Time of vesting of rights under
appropriation.
Colo. 1992.
It is doubtful that filing application for conditional
water right can be deemed, in and of itself, to have
performed second required function under "first step
test," the taking of a substantial *915 step to put
water to beneficial use; other overt acts would
normally be required.

1 I. WATERS AND WATER COURSES ~135
405
405VI Appropriation and Prescription
405k135 Diligence in completion of works or
application of w'ller to use.

.

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