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' the use of certain water on the Maxwell Ditch boated on the 1'urgatoire River. The parties agreed to exchange the use of water rights on the Maxwell Ditch, as set forth in the letter .Agreement of June 1, 1988. Ihfendant drafted the Agreement. The Agreement is enforceable ~rding to its terms; as previously found in the Order dated February 23, 1997, none pro tune ary 30, 1995, entered in connection with Mr. Tatum's motion for partial summary judg- ment. Basin Resources, Inc. is 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.f.s. originally decreed to the Maxwell No. 11 Ditch water right. Tatum is the 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.f.s. 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 summers. At the time of this Agreement, the parties were uncertain whether the exchange required water court approval and agreed to cooperate if water court approval was required. Efforts to complete the trans- action broke down after personnel changed at Wyoming Fuel Company, and both parties ultimately ceased efforts to complete the transaction. This lawsuit followed. The June 1, 1988 Agreement between the parties provided that they would exchange a likt amount of water from different locations, and also recognized that the existing priorities of the water rights might, in the future, result in what they refetrod to as a "shortfall" and also provided what was to be done in that event. The parties contemplated and discussed a simple exchange of the use of each ere' water and sought to avoid the need for involvement of the water court. The Agreement ~s w simple "you use my water and I'll use your water". The parties did not contemplate the exchange of priority number or points of diversion. Their Agreement expressly so stated. The Agreement contemplated that if water court approval was required they would cooperate to obtain the approval. Water commissioners in this jurisdiction have 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 until defendant contacted state and local water authorities 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 Tatum, to a third party (Toupal). The Court finds from the evidence that the parties entered into the Agreement to exchange the Maxwell Ditch water rights and both parties partially performed under the Agreement. Subsequent, and after numerous changes in personnel at the mining operation, and the sale of Wyoming Fuel to Basin Resources, Inc., defendant's new personnel and owners C~