2007-05-10_ENFORCEMENT - C1981013

• Permit No: C1981013
• IBM Index Class Name: Enforcement
• Doc Date: 5/10/2007
• Doc Name: DRMS Brief in Support of NOV CV2007001, Civil Penalty & Proposed Decision on SI
• Violation No.: CV2007001
• Media Type: D
• Archive: No

141 P.3d 863
141 P.3d 863
(Cite as: 141 P.3d 863)
Basin is confined to instances"where the property in-
vasion will and should continue indefinitely because
defendants, with lawful authority, constructed a so-
cially beneficial structure intended to be permanent."
floerv v. Unircct State rnrra 764 P .3d it 220.
1
140,1e/kain and Colorado Notional Bank involved
the discharge of water from ! irrigation ditches and
reservoirs. Denver & Sonia 1•e Rv. r. lYanltuan 43
Colo. 122.. 05 P 343 (100,11, arose in the context of
the construction and maintenance of railroad lines
that abutted residential homes. In those cases the
structures causing damage to the plaintiffs' properties
were deemed to be vital to the development of the
state and the damages were determined to be neces-
sary byproducts of the socially beneficial improve-
ments.
I
The record supports the conclusion that damage to
homeowners' residence occurring after December
1997 because of unpredicted?and unforeseen addi-
tional subsidence in the mine does not constitute a
pre-December 1997 property invasion that continued
indefinitely. Furthermore, the continued infliction of
material damage to residential, properties as a result
of subsidence in mine workings below the surface of
the land does not present any! significant benefit to
the continued development of! the state. In view of
these considerations, we conclude the December
1997 injury was not a permanent injury.
i
It is not disputed that the development of natural re-
sources, including coal miningi operations, is an en-
deavor that significantly benefits state and national
economies. Indeed, the General Assembly explicitly
recognized this fact when it enacted the Colorado
Surface Coal Mining Reclamation Act. See I
34-33-102. C.IZ S 2005. Nonetheless, we would find
it incongruous if homeowners should be required to
sacrifice the structural integrity of their homes
without reasonable- compensation when the damages
are unpredictable and occur at lengthy and unforesee-
able intervals of time.
i
*869 These conclusions are particularly appropriate
here in light of the extensive evidence produced at
trial establishing that the First North mine shaft of the
Golden Eagle Mine was especially prone to dilapida-
Page 5
tion and degradation due to poor structural condi-
tions. A former government official who inspected
the Golden Eagle Mine while it was operational and a
former mine supervisor testified that the First North.
portion of the mine suffered from substantial and ex-
traordinary problems--including excessive retention
of water and a poor mining floor surface--that created
an extremely fragile and "soupy" platform on which
to undertake mining operations. Given these findings,
and consistent with the trial court's conclusions, we
conclude the court properly allowed recovery here for
the damage to homeowners' residence that occurred
subsequent to December 1997.
1'51161171 We also conclude that recovery is not
barred by the doctrine of res judicata. Res judicata
precludes a claim that was or could have been raised
in a previous litigation. Cirn ce Count}, o> Denver v
Block 173 dssocs. 814 P .2d 824 (Colo 1991). The
doctrine will only be applied if in both proceedings
there is identity of subject matter, identity of cause of
action, identity of parties, and identity of capacity in
the persons for whom or against whom the claim is
made. Tttrkev Creek 1 td Liao Co v 4nglo •Im Corr-
sol. Crap. 43 P.3d 701 (Colo =\pp 20(11).
Here, the trial court found, with record support, that
homeowners suffered a second injury to their resid-
ence as a result of a second incidence of subsidence.
Because homeowners base their present suit on a sep-
arate injury, there is no identity of subject matter
between the two lawsuits. Thus, the doctrine of res
judicata is inapplicable.
Basin argues that homeowners could have included a
claim for future damages in their earlier suit. Under
this reasoning, a homeowner would be required to
speculate about what damages might occur in the fu-
ture as a result of unknown causes, particularly sub-
sidence. We are not convinced that in enacting the
Colorado Surface Coal Mining Reclamation Act the
General Assembly contemplated placing such a bur-
den on homeowners harmed by an independent initial
injury from subsidence in underground mine work-
ings. Thus, we reject this argument.
II.
"M Basin contends the judgment must be reversed be-
?O 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.