dissenting.
The record in this case clearly establishes that the county, through its agents Tecmire and Carstensen, was aware from at least as early as May, 1975, that the property in question had been or was about to be conveyed to the defendant bank in trust. The county was certainly aware by July of the same year that the property had been conveyed. Uncontradicted testimony from Carstensen indicates that Tecmire actually contacted the bank sometime during the year. Under these circumstances, and whatever may have been the nature of the assurances provided by Mr. Whittle to Carstensen and Tecmire, it seems to me to be patent that the county had adequate notice as to where the actual power with respect to the property lay, and cannot now claim to have been misled by Whittle’s assurances. Indeed, the very fact that Tecmire contacted the bank shows that the county was aware that the future of their ability to extract and store gravel on the property in question was now at least partly in the hands of another party. Under such circumstances, I cannot understand how the bank or the bank’s successors in interest, the Comptons, can be deemed to have been bound or estopped by anything Whittle may have said to Carstensen and Tecmire. The county was on notice as to the true status of the property and was obliged to protect its own interest without unreasonably relying upon Whittle. The county failed to do so.
This proper view of the facts, however, does not solve the problem presented by the case.
Contrary to the majority, I read the pertinent portion of the contract between Whittle and the county as providing for a forfeiture. The provision,
*423"The county shall have the continuing right to remove said stockpiled rock until this agreement expires * * *, ” (Emphasis added)
seems to me to make absolutely clear that the license, i.e., the right to remove stockpiled gravel expires when the agreement does. This is a forfeiture, plain and simple, and the absence of the word "forfeit” or "forfeiture” from the instrument is of no moment. Establishing that there was a forfeiture as between the county and Whittle does not, however, settle the ownership of the rock:
1. Whittle has released his rights in the underlying estate. The right to a forfeiture as to Whittle should be deemed extinguished. Even were it not so, he would be estopped by his conduct from claiming the forfeiture.
2. It is equally apparent that the bank, having sold the property while the license to store the gravel was still in force, has no interest in the gravel now.
3. The sole issue, then, is between the county and the Comptons vis-a-vis the gravel.
The majority holds that the Comptons are not entitled to a forfeiture. They are, rather, held to be property owners subjected to a continuing trespass by the property of another (the county), entitled to damages therefore, but obligated to grant the county a reasonable time within which to remove the gravel. With respect, I cannot agree.
The Comptons, as successors in title to Whittle, took the property in question subject to the valid lease. During the term of the lease, they had no right to interfere with the county’s exercise of any of its rights under the lease. But, once the lease had expired, they were entitled to treat their property in any manner consistent with the fact of expiration. Expiration— under my reading of the pertinent instrument — meant forfeiture.
No inequitable conduct of the Comptons was responsible for the county’s current awkward position: *424the county, by inattention, negligence, or for other reasons not apparent in this record, failed to preserve its rights in the gravel it had extracted. The contract— which the county must have understood — calls for forfeiture. The trial court was correct in so holding, and should be affirmed.
SCHWAB, C.J., and BUTTLER, J., join in this dissent.