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use of their water by engaging the a;sistance of legal counsel, and state and local watF•r <br />officials. The Court finds that the defendant breached its Agreement with Tatum and sought <br />reasons including a new interpretation to avoid honoring the Agreement. Defendant took <br />actions which had the effect of depriving Tatum of the use of their water during the summers of <br />1994, 1995,1996, and 1997. Tatums losses include loss of hay crop each summer and loss of <br />grazing pasture each summer. Damages for loss of use of their water during these summa <br />seasons is $8,000.00 per summer which totals $32,000.00. Defendant has breached this _ <br />Agreement and in doing so has caused damage to Tatum. Tatum is also entitled to specific <br />enforcement of the Agreement according to its terms; that is, the continued exchange of water <br />each irrigation season that it is available. The Court recognizes that adjudication in the water <br />court may be required to accomplish the Agreements' objective. <br />Agreement To Exchanve Water Rivhts-Consolidated Ditch: Plaintiffs have failed to <br />show by a preponderance of the evidence the existence of their claim that they had an <br />Agreement to exchange water on the Consolidated Ditch, although there was evidence of some <br />agreement involving the trade, or use, of waters to irrigate the Torres acreage. Plaintiffs have <br />failed to prove by a preponderance of the evidence, the existence of this exchange or sale of <br />water rights. <br />Subsidence Issue; Evidence at trial established that extensive underground coal mining <br />operations were conducted near, and under the plaintiffs property line and within 300 feet of <br />their residence. Subsidence was evidentin various locations on the Tatum property, including <br />the railroad tracks running through the Tatum property, and a sink hole near the Tatum <br />residence. The Tatum residence was considerably damaged by the subsidence, which was <br />caused by the mining operation. Tatums did not cause nor contribute to the damage in any <br />way. Damages to the residence include the cost of past repairs and cost of future repairs, and <br />have caused a diminution of value of the property. Tatums have spent $14,500.00 attempting <br />repairs to the property and will be required to spend additional sums to completely restore the <br />existing damage caused by the subsidence. The fair market value of the property has been <br />diminished by subsidence damage. The fair market value of the property according to <br />testimony provided at trial is $260,000.00. The same testimony showed that, but for the <br />existence of the ventilation shaft, the lack of a working well near the ventilation shaft, and the <br />subsidence damage, the fair market value would be $325,000.00. Twenty percent of the <br />diminution in value is attributed to the lack of a working well. Plaintiffs have, thus, suffered a <br />a <br />