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SEP-27 30 67~~3 FPOM: SYN~OR~ 3IlL:NGS '1T X062522390 70:33.38531379 ~Pi;G:~? <br />str-~r-e~~uu wtu u~~~i rn nunIRNR t'I;WtK ~~as~ reX NU. 1 4U6 45! 331 F. C7 <br />4. The parties agra~e that the owner of a mineral right taay go upon and use the surface <br />land overlaying the mineral right to construct a ventilation shaft needed in the mineral <br />extraction operAtion, and that the mineral right owner must reasonably compensate the land <br />owner for any property taken, rendered unusable, or for surface disturbance rewltinG from <br />mining operations. Here, defendant's cnnatruetinn and use ofthe ventilation shag resulted in <br />surface disturbance to plaintiffs' property. <br />5. The mcasurc of damages ordinarily applied to situations where damage is caused to <br />real property of another is the market value before and after the irtjury; l.e., the diminution of <br />value. <br />b. An appropriate remedy for breach of contract Is to order the specific pcrformaace of <br />its terms and, if damages have resulted, to award actual damages. <br />7. Atrial court may award reasonable attorney fees if it dotertainea that an action lacks <br />substandal justification. A claim leaks substantial justification if it is "substantially frivolous, <br />substantially Groundless, or subatatttially vexatious". <br />ACCORDINGLY, based upon the foregoing Findings of Fact and Conclusions of Law, <br />Jud~ent u entered in favor of Plaintiffs, James Tatum and Ann Tatum, and again_vt Basin <br />Resources, Inc., as foUowa: <br />1) Basin Resources, Inc. shall forthwith consult with, end cooperate with Plaintiffs, <br />James Tatum sad Aaa Tatum, to complete the orderly application and use of their exchange of <br />Maxwell Ditch water, Including communication with appropriate state water officials of this <br />judQrrtent and order. <br />2) Judgment is entered is favor of James Tatum and Ann Tatum, and against Basin <br />Resources, Inc. as follows: <br />a. Compensatory damages for lose of water for four irrigating seasons in the <br />amount of THIRTY-TWO THOUSAND DOLLARS (532,000.00). <br />b. Compensatory damages for diminution ofthe value of their residence as <br />result of subsidence damage, FORTY•Eit'~H'T THOUSAND DOLLARS (548.000.00). <br />