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, Ciry of Thornton By and Through Utilities Bd. v. City of Fon Collins, (Colo. 1992)

Page 11

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acts occur before the formation of the requisite
intent to appropriate." 703 P.2d at l307 (citing
Harvey Land & Cattle Co. v, Southeastern Colorado
Water Conservancy Dist, , 631 P ,2d . 1111
(Colo,1981); Twin Lakes Reservoir & Canal Co. v,
City of Aspen, 192 Colo, 209, 557 P,2d 825 (1976)
). This formulation requires some clarification,

[5] [6] In Bar 70, we held that no matter the
sequence, the relevant actCs) "must be of such
character as to perform three functions...." 703
P.2d at 1307 Cciting City of Aspen, 696 P,2d at
762-63). The three required functions are; "(1) to
manifest the necessary intent to appropriate water to
beneficial use; (2) to demonstrate the taking of a
substantial step toward the application of water to
beneficial use: and (3) to constitute notice to
interested parties of the nature and extent of the
proposed demand upon the water supply." Bar 70.
703 P.2d at 1307, A relevant act need not perform
all three functions, as long as all three functions are
performed by some relevant act or acts. An act
which performs one or more of these functions is
thereby an overt act for purposes of the first step
test. Obviously, if g relevant act is deemed to have
performed the first function of manifesting the
necessary intent, then the necessary intent has been
formed,

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[7] [8] Thus, if the sequence of elements in a
particular case is such that a relevant act precedes
the formation of the necessary intent, then that act
cannot be deemed to have performed the first
required function of manifesting the necessary
intent. The act, therefore, which is deemed to have
manifested the necessary intent is the one act which
cannot precede the formation of the necessary intent.
However, an act preceding both the formation of the
necessary intent and the act manifesting that intent
may be relevant because that act may be deemed to
have performed the second and/or the third required
functions. In City and County of Denver, we held
that "formation of the necessary intent to appropriate
may succeed the performance of those overt acts
that serve the purposes of demonstrating that a
substantial step has been taken toward application of
water to beneficial use and of putting others on
notice of the prospective demand upon the water
supply." 696 P.2d at 748. Conversely, overt acts
performing those functions may precede the
formation of intent. CFN5) Even so, the first step
can never be completed before the formation of the
necessary intent, and the appropriation date of a

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conditional water right cannot be set earlier than the
formation of the requisite intent and the act which
manifests that intent.

[9] Turning to evidentiary concerns. the problem
may arise as to what relevant act can be deemed to
have performed the function of manifesting the
necessary intent. *926 In Harvey Land & Cattle.
631 P.2d at 11l3, and in Twin Lakes, 557 P.2d at
828, we held that the filing of an application for a
conditional water right itself may be evidence that
the necessary intent to appropriate water has been
formed. That filing an application for a conditional,
water right may constitute such evidence means that
the filing also was the relevant act which performed
the first required function of manifesting the
necessary intent. See City and County of Denver,
696 P.2d at 748 n. 14,

[10] [11] [12] Given that filing an application for a
conditional water right may be deemed to have
performed the first function, we proceed to consider
whether a filing may be deemed to have performed
the second and third required functions if other
relevant preceding acts are lacking or fail to qualify
as overt under the first step test. While filing an
application for a conditional water right certainly
may be deemed to have performed the third required
function of providing notice, see Collard, at 552, it
is doubtful that a filing can be deemed in and of
itself to have performed the second required function
(i.e., taking a substantial step to put the water to
beneficial use). Other overt acts normally would be
required. Under section 37,92-305(9)Cb), 15 C.R.S,
(1990), an applicant for a conditional water right
must establish that water can be and will be
"diverted, stored, or otherwise captured. possessed,
and controlled and will be beneficially used."
Establishing that waters can be diverted or
controlIed would entail some showing that certain
measures toward the application of waters to
beneficial use either have been taken before the
application was filed or at least before trial. See
Southeastern Colorado Water Conservancy Dist. v.
City of Florence, 688 P,2d 715, 718 (Colo. 1984) (9
37,92-305(9)(b) "requires proof that water will be
diverted and that the project will be completed with
diligence before issuance of a decree for a
conditional right"). The relevant measures taken
and offered as evidence to make the required proof
under section 37,92, 305(9)(b) also may be relevant
for purposes of showing that the second function
under the first step test thereby has been performed.

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