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_°EP-'? ~~ E7:?@ ~=0!'::;':biCOAL °TLLIta,. '1T 4C7oc=22??~ *O:~e~_'or.__79 <br />~Lr-G~-[UL~ nCU 'JI•JU YI1 IIUtV:hfl ti YVWCt: L_UtlL !'Nn 1tU. l ill t7 ear ~e~~ <br />--~ ~..~ <br />'AGE: C'c <br />N. U9 <br />the use of contain water on the Maxwell Diub located on the Purgatoire River. The pnttiec <br />agreed to exchange the Uae of water rights on the Maxwell Ditch, as set forth in the lever <br />Agreement of June 1, 1988. pofendant drafl;cd the Agreement. The Agreement is enforceable <br />according tp its terms, a9 previously found in the Order dated February 23, 1997, none pro tune <br />January 30, 1995, entered In COnnectiun with Mr. Tatum's motion for partial sumrttary judg- <br />ment. $asin Resources, Inc. is the successor in interest to Wyoming Fuel Company in the <br />Agreemern. <br />BRI is the owner of 3.0 c.fs. of the 4.0 c.fs. originally decreed to rho Maxwell :vo. 11 <br />Ditch water ripttt. Tatum is rho owner of 3.0 af:s. in the tvlaxwoll No. 9 Ditch water right. <br />Wyoming Fuel and Tatum agreed to an exchange/trade of the use of 2 c.f.s. of their respectivc <br />interests in the water riithts as set forth in the letter of Tune 1, 1988. $oth parties performed <br />under the Agreement by honoring the exchange for several summers. At the time of this <br />Agreement, the parties wero uncertain whether rho exohatlge retiluired water court approval <br />and agreed to cooperate if water court approval was required. Efforts to complete the trans- <br />action broke down after porsottttel changed at Wyoming Fue! C',oenpany, and both parties <br />ultimately eoased et~otts to cotnpieta the trattaaotion. Thu lawsuit followed. The .Tune 1, 19RR <br />Agreement betwern the pariiee provided that they would exchange a like amount of water from <br />dlSerent locations, end also rocognizcd that rho existing priodtios of the water rights might, in <br />the future, result in what they ttferred to as a "shortfall" and also provided what was to bn done <br />is that event. The parties contemplaud and discussed a sitaple exchange of the use of each <br />others' water and sought to avoid rho need for involvement of the water court. Tho Agrccrncnt <br />was a simple "you ttse my water end I'lI use your water". The patties did not contemplate the <br />exchange of priority number or points of diversion. Their Agreement expressly so stated. The <br />Agreement contemplated that if water cotttt approval wes required they would cooperate to <br />obtain the approval. Water commissioners in tttit3 jurisdiction have historically allowed parries <br />to exchange the use of water without water court adjudication arid, in firer, the parties exch- <br />anged use of each others' water until defendant contacted state end iota! water authorities <br />claiming than the Agreement was an ozchange of priority numbers and point of diversion; <br />thereby requiring water court approval. After the state and local water officials stopped the <br />water exchange, defendant stold the water they traded to Taturt, to a third parry (Toupal}. <br />The Cour: fsnds from the evidence that the parties ontered into the Agreement to <br />cxchaage the Maxwel l Ditch water rights and both parties partially performed under the <br />Agreemont. Subsequent, and aRer numerous changes in personnel at the mining operation, and <br />thtl sale of Wyoming Fuel to Basin }taeources, Inc., defendant's new personnel end owners <br />