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;tr-=: au t~:~i r-u~~: c~n~,u-~_ ~.~~'rly~ 7 ~yt~-==~=~ 1.7: ~J'.gc~_'7~ ogSE:t~ <br />..u ~~ cuu~ ww v. •.,u , ii ,iVi,iniln I VR[B LGVI'1L fnA I'IV, l 4~C 'IJ' ~G?C C, J~ <br />` (J 4~•, <br />(~Q 1~ ~~ <br />CS.,, aF iGA.y2 <br />i <br />a rtew interpreaa~on on the A Pe L Stopped perfDtming, and inierfered with I'atums~ <br />use of their water by engaging the assistance of legal counsel, and state and local water fl <br />o ials. The Court flnda that the defendant breached its Agreement with Tatum and sought <br />reaaora including a aew interpretation to avoi~honorine t e ~neeme~ Defendant took <br />actions which had the affect of depriving Tatum of the use of their water during the summers of <br />9 Atoms oases the u oes o y crop summer an loss of <br />grazing pasture each auutsnor. Damages for loss of use of their water doting these summer <br />seasons is 58,000.00 per summer which totals 53Z,000.00. Defendant has breached this <br />A@'eement and In doing so has Caused damage to Tatum. Tatum is also entitled to specific <br />anfotrxment of the Agreement acoord[ng to its terms; that ia, the continued exchange of water <br />oath irrigation season thQt it is available. The Court reeogttizes that adiudicatian in the water <br />court may be required to accompl[sh the Agreements' objective. ~ ~ ~ ~ss~b07 <br />~._ ~4 dt~.aayt <br />re ~~~ c <br />dement To Exchagge GVatar Rights-Consolidated Ditch: Plaintiff§ have failed to <br />show by a preponderance of the evidence the existence of their claim that they had an <br />Agreement to exchange water on the Consolidated Ditch, although there was evidence of some <br />agreement involving the trade, or use, of waters to irrigate the Totres acreage. Plainriffs have <br />failed to prove by a preponderance of the evidence, the existence ofthis exchange or sale of <br />utter rights. <br />Sybaidenec Issue: $vidence at trial estabiiahed that extensive underground coal mining <br />operations wart conducted aea~, and under the plaintiffs property line atld within 300 feet of <br />tltelr residence. 9ubaideace was evident in various loeationa an ttte Tatum property, including <br />the railroad tracks running through the Tatum property, and a sink hol• near the Tatum <br />residence. The Tatum residence was considerably damaged by the subaidonoo, which was <br />caused by the mining operation. Tatums did not caws nor wnatbute to the damage in any <br />way. Damages to the residence include the cast of past repttlrs and cost of future repairs, and <br />have caused a diminution afvalue of the property. Tatums have sport SI4,300.00 attetnptirig <br />repairs to the property and will be required to spend additional auras to completely restore the <br />existing derange cawed by rho subsidence. The fair market value of the property has been <br />diminished by subsidence damage. The fair market value of the property according to <br />testimony provided at trial is 5260,000.00. The same testimony showed that, but for the <br />existence of the ventilation shaft, the lack of a working well near the ventilation shag, and the <br />subsidence damage, the fair market value would be 5325,000.00. Twenty portent of the <br />diminution in value i• attributed to the lack of a working well. Plaiattffs have, thus, suffered a <br />