2007-05-10_ENFORCEMENT - C1981013

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W c1W. 141 P.3d 863 141 P.3d 863 (Cite as: 141 P.3d 863) Page I i H i Colorado Court of Appeals, Div. I., Jim TATUM and Ann Tatum, Plaintiffs-Appellees, V. BASIN RESOURCES, INC.,! Defendant-Appellant. No. 03CA0i750. Nov. 17, 2005. As Modified on Denial of Rehearing Feb. 23, 2006. Certiorari Denied Ai g. 28, 2006. Background: Homeowners brought action against mine operator, pursuant to the Colorado Surface Coal Mining Reclamation Act, to iecover for damage to their home caused by coal mine subsidence. The Dis- trict Court, Las Animas County, No. O1CV26, Jesse Manzanares, J., awarded homeowners damages based on the diminution in value of their property. Operator appealed. Holdings: The Court of Appeals, Kirshbaum, J., sit- ting by assignment, held that: ( 1) homeowners were not barred under the principle of permanent injury to real property from obtaining recovery, despite recovery in previous action; ( 2) res judicata did not bar homeowners' action; (3) testimony of homeowners' expert regarding dam- ages was admissible; and fAl homeowners were entitled to an award of reason- able attorney fees incurred in defending operator's ap- peal. Affirmed and remanded with j directions; rehearing denied. West Headnotes M Judgment 0598 128k598 Most Cited Cases i Homeowners were not barred, under the principle of permanent injury to real property, from obtaining re- covery under the Colorado Surface Coal Mining Re- clamation Act for damage to their home caused by coal mine subsidence, notwithstanding , that homeowners had recovered against operator of the mine three years earlier; evidence showed that dam- e age to homeowners' residence occurring after the first recovery was due to unpredicted and unforeseen ad- ditional subsidence in the mine, and such damage did not constitute an indefinite continuation of the earlier damage. West's C.R.S A. S ;4-Z 3-101 et seq. 221 Action 053(2) 13k53(2) Most C'itrd Cases For purposes of the principle that a plaintiff must re- cover all past, present, and future damages for per- manent injury to real property in one action, the fol- lowing factors constitute a claim for permanent injury to real property: (1) the structure causing the injury must be intended to be permanent, and the resultant property invasion must be one that will and should continue indefinitely; (2) the damage to the property must not be reasonably abatable without taking ex- traordinary measures; (3) the structure must have been constructed with lawful authority; and (4) the structure must be socially beneficial. - j;j Appeal and Error C=842(1) 30k8420) Most Cited Cases IM Appeal and Error 0=1008.1(1) 3Ok1008.1 ( I ) Most Cited Cases In reviewing a final judgment, the appellate court is not bound by the trial court's conclusions of law, but the appellate court defers to the trial court's findings of fact unless they have no support in the record. W Action 0=53(2) 13k53(2) Most Cited Cases The principle of permanent injury to real property, under which a plaintiff must recover all past, present, and future damages in one action, is confined to in- stances where the property invasion will and should continue indefinitely because the defendants, with lawful authority, constructed a socially beneficial structure intended to be permanent. j_S Judgment 0586(2) 228k586(2) Most Cited Case IS Judgment 0=600.1 228k600.1 Most Cited Cases Homeowners were not barred, under the doctrine of 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. i EXHIBIT J