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:.cr -' .~ •~~ _~ -.. ~... _.. iii iHL -'L~tfn-= 'ii YUbC-.C '`'y.L' !il: 3C_b" __t~ bj"G~:lb acr`-c~'GULL «cu ~i•w rn IIUfV:HfIH ruwtr. LCurIL rnn. ~u. i quo tyr .i[JC r. Ua the use of corcain water on the Maxwell Diuh located on the Purgatoire River. The parries agreed to Cxchange the uac of water rights on the Maxwell Ditch, os set forth in tht letter Agreement of Tune 1, 1988. Aofendent drafted the Agreomettt. Tha Agroement is enforceable according to its terms, as previously found in the Qrder dated February Z3, 1997, none pro tune January 30, 1995, entered In cAtlttectiun with Ivir. Tatum's motion for partial summary j udg- tnent. $asin Resources, Inc. i5 the successor in interest to Wyoming Fuel Company in the Agreement. BRI is the owner of 3.0 c.f.s. of the 4.0 c.fs. originally decreed to the Maxwell :vo. 11 Ditch water right. Tatum is rho owner of 3.0 c.f.s. in the ?Maxwell No. 9 Ditch water right. Wyoming Fuel and Tatum agreed to an exchange/trade of the use of 2 c.fs. of their respective interests in the water rights as set forth in the letter of June 1, 1988. Both parties performed under the Agreement by honoring the exchange for several stunmers..4t the time of this Agreement, the parties were trrrcertain whether the exoharlge required water court approval gad agreed to cooperate if water court approval was required. Efforts to complete the trans- action broke down after pessottnel changed at Wyoming Fuel ('orppany, and both parties ultimately Dossed efforts to complete the trattaaetiott. This lawsuit followed. The .Tune 1, 19RR Agreement between the partioa provided that they would oxchaage a like amount of water from IdlSennt locations, and also rocognizcd that rho existing priorities of rho water rights might, in the future, result in what they referred to as a "shortfall" and also provided what was to be done is that event. The parties contemplated and disoussod a simple exchange of the use of each others' water and sought to avoid rho need for involvement of the water court. The Agrccrncnt was a simple "you use my water and I'll use your water". The patties did not contcitrplate the exchange of priority trtunber or paints of diversion. Their Agreement expressly so stated. The Agreement contemplated that if writer court approval was required they would cooperate to obtain the approval. Water cotnnrisaioners in this jurisdiction Savo historically allowed parties to exchange the use of water without water court adjudication and, in fact, the parties exch- anged use of each others' water tmtil defendant contacted state and local water autboritias claiming that the Agreement was an exchange of priority numbers and point of diversion; thereby requiring water court approval. After the state and local water officials stopped the water exchange, defendant sold the water they traded to Tatur_t, to a third party (Toupal}. The Court finds from the evidence that the parties encored into the Agreement to ezch3ngc the Maxwell Ditch water rights and both parties partially performed under the Agreement. $uhsequent, and after numerous changes in gersortnel at the mining operation, and thn sale of Wyoming Fuel to Basin 12osourcea, Inc., defcadant's new personnel and owners