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94. Counterclaim Defendants JoEllen Turner and Michael Morgan, or a company <br />controlled by them, claim to have an interest in the Property pursuant to a surface lease or other <br />agreement with Frank and Mary Lou Morgan. <br />95. There is currently a dispute between WFC and Counterclaim Defendants <br />concerning their respective rights and the propriety of WFC's actions as they affect the property <br />interest claimed by Counterclaim Defendants. <br />96. Under the Colorado Conveyancing and Recording Act, CRS 38- 35- 109(1), <br />No such unrecorded instrument or document shall be valid against any person <br />with any kind of rights in or to such real property who first records and those <br />holding rights under such person, except between the parties thereto and against <br />those having notice thereof prior to acquisition of such rights. <br />97. WFC is therefore entitled to a declaration from this Court as to the parties' <br />respective rights and obligations under the Colorado Conveyancing and Recording Act, the <br />Colorado Coal Program, the Coal Mining Lease, and the alleged surface lease including a <br />declaration as to such matters as whether the alleged surface lease is valid against WFC, whether <br />it is subject to the terms of the Coal Mining Lease, and whether it confers standing upon <br />Counterclaim Defendants in this proceeding or in other administrative and judicial proceedings. <br />FIFTH CLAIM FOR RELIEF — PERMANENT INJUNCTION <br />(WFC v. All Counterclaim Defendants) <br />98. WFC incorporates by reference the allegations of paragraphs 1 to 97 of this <br />Counterclaim as if set forth in full herein <br />99. Some or all of the acts or omissions described above have caused or will cause <br />irreparable injury to WFC. WFC is entitled to mandatory injunctive relief to compel compliance <br />with the Coal Mining Lease by all Counterclaim Defendants and to enjoin further breaches of the <br />Coal Mining Lease to the fullest extent the Court can afford such relief. <br />PRAYER FOR RELIEF <br />WHEREFORE, WFC prays for an Order of this Court entering judgment on its behalf <br />and awarding its damages, costs, and attorneys' fees, and the declaration requested herein, in <br />addition to such further relief as the Court shall deem proper. <br />(00026036.11 12 <br />