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141 P.3d 863 <br />141 P.3d 863 <br />(Cite as: 141 P.3d 863) <br />i <br />Homeowners made certain repairs to their residence <br />while the civil action was pending. <br />After a bench trial, the trial court found in favor of <br />homeowners and in December 1997 awarded them <br />damages of $48,000 based on; diminution of property <br />value due to subsidence damage. Basin satisfied the <br />judgment and did not appeal the award. <br />Over the next three years homeowners did not detect <br />any additional damage to they Solitario Ranch prop- <br />erty. However, in 2000 homeowners noticed new <br />cracks in the structure of their residence. In March <br />2001 they initiated this civil action against Basin, al- <br />leging that additional damage to the property had res- <br />ulted from new subsidence in Basin's mine workings <br />that occurred after December! 1, 1997. Homeowners <br />alleged that, pursuant to the Colorado Surface Coal <br />Mining Reclamation Act, 34-33-101, et seq. <br />C;.R.S.2005, and associated regulations, they were en- <br />titled to an award of damages based on Basin's failure <br />to perform its common law duty to provide adequate <br />subjacent support for the surface above the mine <br />workings. <br />After a bench trial, the trial court concluded that <br />homeowners' residence had suffered substantial and <br />material subsidence damage after December 1, 1997; <br />that such damage was caused by Basin's underground <br />mining operations; and that the damage significantly <br />reduced the value of the property. Determining that <br />the diminution in value of the property equaled <br />$670,000, the trial court awarded homeowners dam- <br />ages in the amount of $62.2,000, consisting of <br />$670,000 less the $48,000 judgment awarded to them <br />in December 1997. <br />I. <br />LE Basin first contends the triali court erred in finding <br />that homeowners' recovery was not barred by prin- <br />ciples of tort law governing permanent injuries to real <br />property or, alternatively, by the doctrine of res ju- <br />dicata. We disagree. <br />Basin relies on the decisions i in lloerv v. United <br />States. 64 P.3d 214 (Colo 2003); *867Lo1orado :Va- <br />i( ?40); and <br />Page 4 <br />Co., 46 Colo. 102, 103 P 280 11009). In those cases, <br />the Colorado Supreme Court held that a plaintiff in <br />an action for permanent injuries to land must recover <br />all damages, past, present, and future, in one action. <br />See A,fiddellcamp v R csciner 1rri;a1inc> Ditch Co <br />srr,ra. Basin asserts the injury to homeowners' prop- <br />erty is a continuing permanent injury and, therefore, <br />homeowners may not recover more than the $48,000 <br />sum they were awarded in 1997. <br />L21 In floc J"1'. the court identified the following <br />factors constituting a claim for permanent injury: (1) <br />the structure causing the injury must be intended to <br />be permanent, and the resultant property invasion <br />must be one that will and should continue indefin- <br />itely; (2) the damage to the property must not be reas- <br />onably abatable without taking extraordinary meas- <br />ures; (3) the structure must have been constructed <br />with lawful authority; and (4) the structure must be <br />socially beneficial. Basin argues that these four <br />factors were satisfied in the initial case, that the in- <br />jury to homeowners' property established therein was <br />therefore permanent, and that homeowners' cannot re- <br />cover damages in excess of their December 1997 <br />judgment. We are not persuaded. <br />1.31 In reviewing a final judgment, we are not bound <br />by the trial court's conclusions of law. - lonfeinavor v, <br />.lat"nr Comnnodeations Inc., 6 4 P.3d 916 <br />(Colo.A rip 2002). However, we defer to the trial <br />court's findings of fact unless they have no support in <br />the record. See f cierson v. Growul PVoter Contm'n <br />195 Colo. 508. 579 P ,2d 629 (1978). <br />Here the trial court determined that homeowners had <br />established that a "second or subsequent incident of <br />coal mine subsidence" had occurred to their residence <br />after December 1, 1997. Homeowners' expert witness <br />testified that the mine experienced a period of <br />"dormancy" for approximately three years after the <br />first incident of damage. Homeowner Ann Tatum <br />testified that she and her husband did not notice any <br />additional damage to their residence between mid- <br />1997 and October 2000. Thus the evidence supports <br />the trial court's factual determination. See floei5% <br />sutra: Colo.:V,0 Rank supra 4,1iddc 1kwnt3niprn <br />Ui The principle of permanent injury relied upon by <br />i <br />© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.