Aubert v. Town of Fruita

To utilize its right to store water for domestic use, the Town of Fruita (appellant) built an on-channel reservoir and dam in 1935 and enlarged it in 1959, 1962 and 1967. The enlarged dam blocks the entire flow on the west fork of East Creek and it is conceded by appellant that there is no facility constructed in the dam to permit the downstream passage of water.

The appellees hold direct flow rights downstream on East Creek which are senior to Fruita’s rights. They sought and obtained an injunction in the trial court ordering Fruita to cease violating their senior rights.

The trial court…