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the use or certain water on the Maxwell Ditch located on the I'urgatoire River. The ,parties <br />agrexd to exchange the use of water rights on the Maxwell Ditch, as set forth in the letter <br />Agreement of June 1, 1988. Defendant drafted the Agreement. The Agreement is enforceable <br />according to its terms; as previously found in the Order dated February 23, 1997, nunc pro tunc <br />January 30, 1995, entered in connection with Mr. Tatum's motion for partial summary judg- <br />ment. Basin Resources, Inc. is the successor in interest to Wyoming Fuel Company in the <br />Agreement. <br />$RI is the owner of 3.0 c.f.s. of the 4.0 c.fs. originally decreed to the Maxwell No. 11 <br />Ditch water right. Tatum is the owner of 3.0 c.fs. in the Maxwell 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 respective <br />interests in the water rights as set forth in the letter of June 1,1988. Both parties performed <br />under the Agreement by honoring the exchange for several summers. At the time of this <br />Agreement, the parties were uncertain whether the exchange required water court approval <br />and agreed to cooperate if water court approval was required. Efforts to complete the trans- <br />action broke down after personnel changed at Wyoming Fuel Company, and both parties <br />ultimately ceased efforts to complete the transaction. This lawsuit followed. The June 1, 1988 <br />Agreement between the parties provided that they would exchange a like amount of water from <br />different locations, and also recognized that the existing priorities of the water rights might, in <br />the future, result in what they referred to as a "shortfall" and also provided what was to be done <br />in that event. The parties contemplated and discussed a simple exchange of the use of each <br />others' water and sought to avoid the need for involvement of the water court. The Agreement <br />was R simple "you use my water and 1'11 use your water". The parties did not contemplate the <br />exehartge of priority number or points of diversion. Their Agreement expressly so stated. The <br />Agreement contemplated that if water court approval was required they would cooperate to <br />obtain the approval. Water commissioners in this jurisdiction have historically allowed parties <br />to exchange the use of water without water court adjudication and, in fact, the parties exch- <br />anged use of each others' water until defendant contacted state and local water authorities <br />claiming that the Agreement was an exchange 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 sold the water they traded to Tatum, to a third party (Toupal). <br />The Court finds from the evidence that the parties entered into the Agreement to <br />exchange the Maxwell Ditch water rights and both parties partially performed under the <br />Agreement. Subsequent, and after numerous changes in personnel at the mining operation, and <br />the sale of Wyoming Fuel to Basin Resources, Inc., defendant's new personnel and owners <br />s <br />