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01/31/2007 15:38 7198460159 JIM TATUM PAGE 07 <br />• ai=L-~,~: 11Y-~Y 3~JliF"M :'1"HfItU JL'llICIAL U1S~ D. Q, $$• :y $ <br />' ~ <br />~OAC]U51of18 of I.evv <br />1. '1'hc operator of a` underground coal taline.is liable 'ardatnages <br />caused to property by operation of thur mining.operations," Surfhce <br />owners are entitled to recover damages caused to their dwellings by . <br />underground'caal mining subsidence. Ha~c, ground. subsidence by the <br />under~-ound coal mining operation bf Defendant caused sWctural <br />' movement and material damage to Plaintiffs' dwelling. <br />2. The measure of damages in a~ case of coal mine Subsidence in <br />Colorado is the `!full amount of the dirnintrtion of vahte" as apecifed <br />by the Colorado Surface Coal Mining Reclamation Act, and <br />regulations~dopticd pursuant to this Act. See C.RS. ?4-33-I D3, ]21; <br />133.5, t 350, and 2 Colo. Code of Regs., 4.20.3(2}(b)(ii). The "full . ' <br />amount of the diminution of ~•alue" is.not defined'in the stantte or <br />regulation; nor c~oec the statt{te ar regulation articulate an ittteat to - -~ ----~ <br />adapt the cometpn l-aw defiaation. Here, the Court has applied the <br />' "' defuiition advarsl~d by Plairr~iffs that this iS a special regulatory <br />__ . -...,._,measure of.damages, and that Plaintiffs must be compensated for the <br />full amount df their damage measured by the vahae of the properly - - - -- <br />with subsidence and the value of the property without subsidence; <br />. _ , . cslculatied as of the date of judgmeztt. ' <br />3. li is a fi:ndamental law of equity iliac a pasiy may not receive <br />duplicate.compensatian far in}cries ar damages caused by snottier. <br />Nere, credit m Aefendani of,$48,000.00 previously paid must be <br />----._.._-.. -.aPAlied to t;1t: ~ittal Judgment, .. _. <br />- '4, lri atiy civil act on far damages, the plaintiffhas the burden of proving - ~-- <br />their claim by a preponderance of the evidcnrc. To prove something <br />by a preponderance of the vidence means to prove that it is mare _ <br />prab$biy tzvc than not, <br />5. Colorado law maces nv distinction between the er3'ect of direct <br />evidence and circumstantial evidence. <br />6:. Any person who is injared in pe;s4n or property through the violation <br />- ~ ~~ by an operator of any rule or.regulation promulgated may bring an <br />,,,, . <br />'- "~"~' =action for damages (including reasonable attorney and expert witness - . <br />X~. ':. P ix'r ..- <br />"~'="' ``~'"=•`'•~~~• ~~"•. `fees) aEaitist such operator only in the county where the violation <br />~J"~ ~ occur;etl.-Here; l7efendF,nt having failed to compensate Plaintiffs far ... - - <br />f~ = ry?~. ;~+au.~. eir, damages, PlaintiffS.ATe eAtitaed to an 2Ward of attorney fees.. _.._- •- <br />~ C.R;5.3433.139(6) - <br />y_ <br />} ,.: ~ <br />'/ <br />1 <br />