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LEAVENWORTH & LOCHHEAD, P.C. <br />Don DeFord, Esq. <br />Page 2 <br />February 15, 1991 <br />of Colorado. The production figures for 1981 through 1990 were compiled from tl~e records <br />of Eastside Coal. As you can see, there have been a total of seven separate mines located <m <br />the property at one time or another. The enclosed map shows the locations of these mines. <br />Although there are some years in which more than one mine has been operating, for the <br />most part only one mine has been operating on the property at any one time. Despite the fact <br />that several mines have operated, the table makes it clear that coal mining activity has be.~;n <br />undertaken continuously on the property since 1913. The only use of the property has been for <br />coal mining purposes. I be]ieve the law is clear that, in a mining operation, the use is not <br />limited to a particular location on a piece of property. Rather, the owner, or any les::ees, have <br />llie right to pursue and mine minerals wherever they are located on file property, to the <br />boundaries of the property. i believe the relevant consideration is the overall Icve1 of activity, <br />although there is case law to support the position that the landowner has the right to increase the <br />volume of business by natural expansion and growll~ of bade, and that such expansion is not :m <br />unlawful use. In other words, the relevant inquiry is the original nature and purpose of the <br />undertaking. <br />Historically, coal extracted from the property has been sold to numerous sources. There <br />have been local sales by which customers have driven trucks to the property to purchase coll. <br />There were also sales to the railroad in Silt which required hauling coal to the :gilt depot. <br />Finally, there have been sales to other customers which have required hauling. Thy;refore, it <br />is clear that mining operations on the property have historically generated thick traffic on local <br />roads. <br />There are two periods in which there was no coal production on the property: 1926- <br />1930, and 1980-1983. We do not have any information concerning the reasons for the cessation <br />of production on the property during the period 1926-1930, other than the fact that operations <br />shifted from the Harvey Gap (Old) to the Harvey Gap A~2 mine. <br />Commencing in about 1969, Louis and Henry Bendetti obtained a written co;ll lease ~m <br />the entire Eldridge property and commenced operations at the Nu Gap q3 Mine. in allout 1976, <br />the Bendettis determined to separate their operations and began the negotiation of separate leases <br />with the owners. While they were in the process of negotiating separate leases, Louis and Henry <br />separately operated the Nu Gap H3 (Henry), and the Eastside (Louis), Mines, under oral leases <br />with tl~e Eldridges. During this time, the Eldridges also commenced negotiations with other <br />entities for the leasing of the property for coal mining purposes. On December 5, 1978, the <br />Eldridges leased the entire property to Peltron Energy. Harrison-Western Corporation, a <br />contractor of Peltron, commenced negotiations with Louis Bendetti for Louis to clmtinue to <br />operate the Eastside Mine. At the same time, Harrison-Western undertook the permitting procc•.ss <br />U[fOkUA.4LT <br />