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MidCon has asserted in its First Claim for Relief in its proposed Third Party Complaint that <br /> destruction of the Lamp House and other improvements on the private property in Coal Basin would <br /> amount to a taking of private property without just compensation contrary to the Fifth Amendment <br /> of the United States Constitution. This is an argument not available to MCR. In this respect, this <br /> case is analogous to O'Hara Group Denver, Ltd. v. Marcor HousingSystems Inc., 197 Colo. 530, <br /> 595 P2d 679 (1979). In that case, the court found that the interests of the plaintiff and the proposed <br /> intervenor (the bank) were "to a large degree coincident." 595 P.2d at 688. The court went on to <br /> recognize that the bank had available to it several arguments that could not be asserted by the <br /> plaintiff. Id. The court concluded that: <br /> It may be that the Bank's claims are worthless. But those claims are better tested in <br /> the crucible of trial and of argument before the trial court than in motions based <br /> solely on the pleadings. . . If the intervenor's claims prove to be without foundation, <br /> then, of course,judgment may be entered against it. But that determination should <br /> be based on the merits of the claims, as tested at trial. Id. <br /> Likewise, while both MCR and MidCon do not want the Lamp House and other <br /> improvements destroyed, their arguments for the injunction are different. MidCon asserts <br /> that the destruction would be a taking of private property without just compensation. MCR <br /> asserts that it would be a squandering of the limited resources for reclamation. Further, <br /> MidCon has alleged in its Second Claim for Relief in the proposed Third Amended <br /> Complaint that by breaching the contract for reclamation, DMG will not be able to <br /> adequately reclaim MidCon's property thus, devaluing it. (See C.R.Civ.P. 17(a) "Every <br /> action shall be prosecuted in the name of the real party in interest . . ."). Therefore, it is <br /> entirely appropriate for MidCon to participate in this litigation and assert the claims in the <br /> proposed Third Party Complaint. <br /> 4 <br />