(concurring in part and dissenting in part).
I must respectfully dissent from the views of the majority in two particulars: (1) I would hold that the defendants had an irrevocable license to use the 16.13 acres of land in question; and (2) I would deny any recovery of punitive damages by plaintiff against defendant. I otherwise concur with the majority.
While I have no dispute with the recitation of facts by the majority, it is my belief that they ought to be presented in a light fitted to show the defendant’s claims of right, as I view the questions. Ever since 1950, the defendant-appellant had a limestone quarry operation on land located on a part of a ranch now owned by the plaintiffs-appellees; appellees acquired the ranch in 1973. Between 1950 and 1960, the operation was carried on under an oral agreement between the defendant and predecessors in title by the name of Cole. *1184In 1960, the defendant decided to move its quarry to a different location. At that time the oral understanding was incorporated into a written limestone lease,1 which included other land with which we are not concerned, with subsequent owners by the name of Cooper, the royalty to be split between the Coles and the Coopers for a period of 50 years. The Coles had been leasing what is known as the Oppenheimer place, a 160-acre tract immediately south and east of the quarry lands. The Oppenheimer lease was part of the total ranch unit owned by the Coles and sold to the Coopers, but the lease was retained in the Cole name as security. In 1967 Lloyd Cole arranged for the Coopers to purchase the Oppenheimer place, the Oppenheimers reserving a one-half interest in the limestone from the Oppenheimer place. The Coopers in 1971 sold the entire ranch, including the Oppenheimer place, to a Clayton H. Talley, who later died. On July 11, 1972, a contract for deed was executed between the plaintiffs and the surviving widow of Talley, also the personal representative of his estate.
When defendant moved to its new quarry operation in 1960, Cole and C. D. Roberts, one of the officers of the defendant corporation, orally agreed upon the Oppenheimer place for stockpiling limestone mined from the quarry. The reason for stockpiling on the Oppenheimer land was that part of the limestone leased land to the west, where defendant could have stockpiled, was a better piece of ground, capable of cultivation; it was preferable to use the Oppenheimer land in that it was a rocky ridge and less apt to contaminate the limestone product to be quarried. The area occupied on the Oppenheimer ground amounts to 16.13 acres. Though the Oppenheimer property was then owned by Oppenheimer, it was part of the Cole ranch operation under a lease and Cooper then occupied the land and paid the rental on the lease, until he bought it in 1967. The stockpiling was done on the Oppenheimer ground with full knowledge, consent *1185and approval of both Cole and Cooper and actually at Cole’s request. The exact understanding between Cole and the defendant is reflected in the testimony of Cole in response to a question inquiring what was said about the Oppenheimer land:
“A [By Mr. Cole] I explained to Mr. Roberts that I didn’t — that I didn’t own the Oppenheimer land, that I had a lease on it, and that I had the first right to buy and that I owned the land to the west where they could stockpile, but due to the.fact that it was a better piece of ground and a little cultivated field there that would be covered by the stockpiles it would be preferable if we could use the Oppenheimer land to stockpile on, and he agreed that it would be handier because it was a better base to pile it on, because it was a rocky ridge and it would be far less apt to contaminate their product with mud and whatnot than it would to the west, and he was perfectly agreeable, and I said in the event my deal should fall through with the Oppenheimers and they — and I not acquire it that it might be necessary sometime in the future to move the stockpiles back to the west and continue the operations over there, which could be done on the deeded property.”
C. D. Roberts, president of the defendant corporation, testified to his version of the transaction as follows:
“A 1960, yes, and I might just state a little thing about that, when we quit the pit up here, I was on a deal with Mr. Alfred Mauch and Janes east of town to open up a pit. Lloyd Cole was still the owner here, and I said, ‘Lloyd, I think I’m going to go east of town.’ He said, ‘No, you’re not.’ He said, ‘I’ve got a location right up here.’ He said, T still want you. I want that royalty out of that rock.’ ‘Well,’ I said, T thought I would get east of town and it might be better.’ He said, ‘No,’ he said, ‘Let’s go up and look,’ so we got hold of Alan and Lloyd and myself, and one evening we drove up there and he said, ‘Here’s where I’d like you to open up your pit,’ and I said, ‘Well, it doesn’t look bad.’ He said, T don’t own the ground to the south where I want you to stock pile, but I have a lease and I have the first option to buy it.’ He said, ‘If you would stock pile on this — where I want you to set your crusher, why, you would stock pile down here in this oat field.’ He said, ‘Where I want you to stock pile here I have tried to plow that ground two different times,’ and he said, ‘It is so rocky we can’t get a plow in the ground,’ so he said, ‘It isn’t good for anything else but stock piling.’ I said, ‘Lloyd, I don’t care where you want us to stock pile, whether it is on the lease or whether it is on the place that you don’t own but rent it and have first option to buy it, it is immaterial to us,’ and that’s where we’ve been ever since 1960.”
The plaintiffs were likewise fully aware of the whole quarry operation, including the stockpiling, and in their contract for deed under date of July 11, 1972, the following provision was contained:
“ * * * Seller further notifies the buyers that a portion of the mineral rights in this property have [sic] previously been separated from the surface of the property and further advises that there is a long term contract covering certain rock and gravel deposits. The Buyers herein hereby acknowledge that they are familiar with the Contract, commonly referred to as the Roberts Contract, which grants to the Lessee the right to mine certain rock and gravel from the property under certain royalty agreements. The Seller does not reserve any mineral rights whatsoever, but specifically advises the Buyers herein that they must purchase subject to the prior reservations of minerals and the contracts in regard to said minerals which are now in effect.” (Emphasis supplied.)
In addition to the stockpile on the 16.13 acres, the major subject matter of this dispute, there is located a secondary rock *1186crusher, explosive storage and what is termed junk. From time to time contractors have set up mix plants on the ground for easy access to rock and to save handling of the material. This additional activity was never objected to by any of the plaintiffs’ predecessors in title and enhanced the value of their royalty interests by attracting increased production. The plaintiffs viewed the land on several occasions prior to acquisition and were aware or should have been aware of the presence and location of the additional activity.
The majority pivots its position on the ground that “ ⅛ mere tenant cannot grant a license to a stranger.’ ” There is no argument that when the defendant first went on the Oppenheimer land he took the license subject to the lease. The Oppenheimer land, however, was transferred to the Coopers in early 1967 and from that time, any contingency because of the lease expired. (Not only that but on March 18, 1971, the Coopers conveyed one-half of the limestone under the Oppenheimer land to the Coles.) The use by the defendant went along uninterrupted until the plaintiffs initiated this action. There was never any known objection by the lessor, Oppenheimer. If the lease had continued, the majority would have a point but it became a complete nullity and leaves the majority standing on a no longer viable, empty technicality, as the basis of its conclusion. These material facts are not in anywise disputed.
A few days before trial, the defendant corporation acquired the mineral rights under the ground occupied by the stockpile from the Coles. This took place, how-over, after the trial judge had entered a summary judgment in the case in favor of the Coles,2 not on this appeal but parties defendant at the trial level.
It is disturbing to my sense of justice that the defendant should be penalized for the use of the 16.13 acres of land when its utilization has been first under a color of authority given by the lessee of the Oppenheimer place, Mr. Cole. There is no proof in the record that under the lease terms with Oppenheimer he lacked any right to grant such permission to the defendant. Then, in early 1967, Cole’s successor in title, Cooper, having acquired the Oppenheimer land, permitted, and as a matter of fact approved and encouraged the limestone being stockpiled on the property, until he sold the ranch to Talley. Talley acquired the ranch subject to the quarrying operation and during his short period of possession under a contract for deed, he likewise permitted the use to continue. The stockpiling has an indirect benefit to those persons who owned the mineral royalty interests, first Cole, then Cooper, then Talley, *1187and, finally, the plaintiffs, now the owners of royalty benefits under the contract with the defendant. An additional benefit to plaintiffs has been that lands capable of cultivation have been made available rather than the rocky ground occupied by the stockpile, which from the aerial photos in evidence appears incapable of nourishing even a lone prairie dog runt.
To have the permission which the defendant had uprooted by a sudden order to forthwith move tons and tons of limestone, placed in an area upon reliance of the permission granted and continued, reeks with inequity. The defendant did have an express right accruing from all of the owners of the land except the plaintiffs.
The defendant has a right to rely upon the license given openly and aboveboard by the beneficiaries of the royalty arrangement. Plaintiffs should not be permitted to abruptly disturb that arrangement to the detriment of the defendant. The judgment of the trial court is unnecessarily harsh. The land would be restored to plaintiffs for no good reason at their whimsical demand. It would be my holding that the defendant has a license to occupy the property even though it has no interest in the real estate. Its right is not by the grant of any easement, implied or express, nor by prescription.
A license may be expressly created by parol as well as in writing or may be implied from the acts of the parties, from their relations and from usage and custom and if the owner of land, with full knowledge of the facts, tacitly permits another repeatedly to do acts upon the land, a license to do such acts may be implied from owner’s failure to object. Kendrick v. Healy, 1920, 27 Wyo. 123, 148, 192 P. 601, 610. The consent of the licensor, which is essential to a license, may be manifested by conduct of any kind which is indicative of the licensor’s consent to the use of his land by another. Chicago and North Western Railway Company v. Rissler, D.C.Wyo. 1960,184 F.Supp. 98, 101.
1A Thompson on Real Property, 1964 Replacement, § 225, p. 235, states as follows :
“In the case of licenses as in other instances in the property law, equity sometimes raises its horrid head to fatally sting the logic of the law. A license is not a property right. It may, therefore, be created by parol, and it may, therefore, be revoked. But what to do if the circumstances would make it inequitable to permit revocation? The doctrine of irrevocability of licenses is a classic example of how the courts, on similar states of facts, reach the same results through different approach theories. But even in the formative stages the English law recognized the injustice in certain instances of licenses being revocable at the whim of the licensor. So early it was admitted that licenses acted upon became irrevocable. Finding itself in this dilemma the law has escaped by finding irrevocable licenses particularly where the Statute of Fraud prohibits an easement. This device of an irrevocable, revocable easement is explained under two types of circumstances; licenses coupled with a grant or an interest, and licenses acted upon. In both instances the underlying policy is in the nature of an es-toppel.”
We find Wyoming cases taking this equitable bent, so well expressed in Thompson.
A “license” is a bare authority to do a certain act or series of acts upon another’s land, without possessing an estate therein. Metcalf v. Hart, 1891, 3 Wyo. 513, 531, 27 P. 900, 906, 31 Am.St.Rep. 122, 138, aff. 31 P. 407. The court there explains at great length how both law and equity have recognized that a license can 'become irrevocable even though based upon parol and such a result is rooted in equity, in order to accomplish what justice and good conscience demand. As said in one of the cases cited with approval in Metcalf, “A right under a license, when not specially restricted, is commensurate with the thing *1188of which the license is an accessory.” (3 Wyo. at 543, 27 P. at 911, 31 Am.St.Rep. at 151.) Each case must stand on its own circumstances. The case recognizes the concept that a party who has induced the combination of the property of another with his own through a promise, express or implied, to not interfere with its use or enjoyment should not be allowed its return although he may withdraw the right to use it when it has served the purpose contemplated.
I recognize that neither Cole nor Cooper wished to withdraw from the license granted and honored it. Metcalf recognizes that a party in possession is notice to a subsequent purchaser and if he is decreed the return of the land, he must place the licensee in status quo and do equity by bearing the cost of the displacement from the position in which he has been placed. That is one solution but I would not take that lesser course.
The equitable principles inuring to the benefit of a licensee where he has in good faith expended money and labor on the strength of the license of an owner are carried forward in Coumas v. Transcontinental Garage, 1951, 68 Wyo. 99, 230 P.2d 748, 41 A.L.R.2d 539. That is a case in which the defendant gave parol permission to the plaintiffs to anchor their building into a wall of the defendants’ building to form a partition between the two buildings. Plaintiffs claimed a perpetual easement; defendants claimed it to be a limited license. The court held that plaintiffs acquired no easement or interest in the land and improvements but only a license for structural purposes during the life of the building.
Coumas stands for the proposition that the term of a license depends upon the circumstances in each case, when it was said (68 Wyo. 99, 127, 230 P.2d 748, 758, 41 A.L.R.2d 539, 552):
“* * * A more universal rule is, we think, that a privilege to do certain acts of a temporary character on the land of another is and always remains a mere license which is revocable at the will of a licensor unless a definite time has been specified, or unless it is coupled with an interest. * * * ”
After considerable discussion in Coumas about how much money and labor must be expended to make a license irrevocable, the court ended up with the conclusion that the criterion as to whether a license should be revoked is whether or not, considering all the facts and circumstances, it would be unjust and equivalent to a fraud to permit the revocation.
We could do as the court did in Coumas and take judicial notice of the fact that it cost money to place the various sized crushed rock into piles by size, running from 100 tons to 20,000 tons, on the 16.13 acres. Aerial photos show extensive piling. It would cost money to move the stockpiles. It would cost money to strip another suitable area and prepare it for stockpiling as well as expense of readjusting the operation to a new plan. Coumas considers not only the expense connected with executing the license by the licensee but also the expense involved if he were ejected. I am convinced that Coumas has material application with respect to money expenditures involved not only in the inception of the license but in the cost of stockpiling and the burden of relocating. Justice Blume recognized that the initial expenditure was not much. In Coumas, 68 Wyo. 99, 230 P.2d 748, beginning at page 133 of the Wyoming Reports, it is made clear on the point that the licensee probably saved money by not having to build a wall. Justice Blume recognized that there is no general rule as to the amount of expenditures required, page 134 of the Wyoming Reports. We must not overlook the cost of piling the rock and reestablishing a new storage area which would entail the cost of preparing the tillable land and moving the stockpiled rock from the 16.13 acre area to a new area. This is similar to the situation in Coumas where there would be considerable cost involved in constructing a jjew wall. The significant point is the detriment that will be incur*1189red in rearranging the operation. See page 136 of Conmas 3 in the Wyoming Reports.
I conclude that the equitable circumstances point to the grant of a license for a period equal to that of the limestone lease. I would hold that at the end of the remaining 35 years of the existing 50-year lease, the license will expire, unless sooner by some act of abandonment or agreement of the parties, it is no longer used.
I would not allow punitive damages related to the gate for at least two reasons: (1) the defendant had a right as a matter of contract and law to free access in and out of the quarry; and (2) the plaintiffs provoked the Robertses into the action they took in tearing down the gate.
I do not believe that the trial court had any right to award damages for removal of the gate, accepting the view of the majority that requiring the defendant to replace the gate or build an auto gate is the same as a judgment for damages.
In the first place, the limestone agreement to which plaintiffs’ ownership was subject, specifically provided that the defendant “shall have the right of ingress and egress at all times in order to properly mine and remove said rock.”
In my examination of the law pertaining to gates, it is observed that presence of unnecessary gates is a frequent source of bitterness, with ensuing litigation, and seems to arouse the worst in people, as is the case here. I am able to understand the annoyance of an impediment to carrying on an active, moving business. The plaintiffs erected a gate on a point on a road where there never before had been one.
Examining the facts in this case, we find undisputed testimony not requiring the resolution of any conflict of evidence by the trial court that ever since the establishment of a quarry on these and other nearby lands, there has never been any problem by any of the owners with respect to escaping cattle nor was there any problem by any tenant, all of whom testified in the case. It was also clear that cattleguards installed had been an adequate protection to livestock. It is also undisputed that because of the nature of the defendant’s business, particularly during the highway construction season, there was heavy traffic in and out of the quarry and it would be an imposition upon the truck drivers of contractors buying stone, fighting time and deadlines, to dismount from their trucks in order to enter the quarry to pick up a load, to open a gate, get back in the truck, go through the gate, stop the truck, dismount to close the gate and do the same thing after having picked up a load in order to depart. The proprietors of the quarry were in and out frequently at all times for the purpose of not only operating the stone crushers and associated equipment but in between times for maintenance purposes. The importance of the road to this industry is further demonstrated by the active part taken by the defendant in its maintenance by graveling, blading and snow removal.
*1190The plaintiffs, without any notice or explanation to the defendant or any of its employees, erected the gate. It is true that some cattleguards in place had not been cleaned out with the result that dirt and other material had piled up to the point where the rails were ineffective to prevent the passage of livestock but when the gate was erected, there were no animals on the ranch nor had there been for some time. It would have been reasonable for plaintiffs to advise defendant of the plan to bring in livestock and request that the cattleguards be cleaned. The plaintiffs were unreasonable in the fashion in which they went about erecting the gate and persistently closing it when it had been left open.
A comprehensive annotation appears in 52 A.L.R.3d 9, entitled “Right to Maintain Gate or Fence Across Right of Way.” There, at pages 19 and 20, appears the following :
“Despite the existence of a number of general rules, the lawfulness of a gate or fence across a right of way remains a question of fact, the courts looking at various factors and balancing the right of the servient owner to use his land, with the right of the right-of-way owner to use his right of way. That the lawfulness of a gate or fence is a question of fact is consistent with the more general proposition that what may be considered a proper use by the owner of land subject to an easement, generally, is a question of fact.”
In National Cylinder Gas Co. v. G. H. Packwood Manufacturing Co., Mo.App.1948, 208 S.W.2d 825, it was held that the servi-ent estate owner had to remove a chain hung from posts at the entrance into its property, where the land in question was industrial property, and where the terms of the grant had specified that the easement was to be used by trucks. (While in our instant case the grant does not specify that the easement was to be used by trucks, the nature of quarry activity required the use of trucks and must have been known at the time of its execution.)' The court stated that while the chain was only hooked on posts and could be unhooked to permit the passage of trucks, the easement was specifically for trucks and was on industrial property. Therefore, the court reasoned, the easement was not similar to the usual easement designed to allow ingress and egress over another’s lands to and from residential farm property, since it appeared that not only the trucks of the easement owner but also the trucks of other companies used the right of way, and that to compel the drivers of these vehicles to lower the chain and to replace it upon their departure seemed an unreasonable hindrance to the use of the right of way.
In Jordan v. Guinn, 1972, 253 Ark. 315, 485 S.W.2d 715, 52 A.L.R.3d 1, the court held unlawful a gate that had been maintained across one end of a right of way, it being stated in reference thereto that unless it expressly stipulated or it appears from the terms of the grant or the surrounding circumstances that the way should be an open one, without gates, the owner of the servi-ent estate may erect a gate across the way if they are so located, constructed or maintained as not to unreasonably interfere with the right of passage, when they are necessary for the preservation and proper and efficient use of the servient estate. It was said by the court that what is reasonable or unreasonable depends upon the facts and circurtistances of the particular case and reasonable minds might differ on the subject. In other words, the court stated that the lawfulness of the gate is a question of fact. The court pointed out the pertinent factors to be considered include the terms of the grant, the intention of the parties as reflected by the circumstances, the nature and situation of the property, the manner in which it has been used and occupied before and after the grant and the location of the gates. It was also pointed out that the relative importance of the language of the grant and the circumstances of the case varies from case to case, depending upon the completeness and the clarity of the language used. The less complete or unclear the lan*1191guage, the court explained, the more important the circumstances become.
The foregoing observations of the Arkansas court are particularly applicable in the situation here in that there was no full and complete explanation in the grant of the manner of ingress and egress and there was no provision as to what facilities would be provided for the passage, but it can be gleaned from the circumstances here that cattleguards were historically the means of passage in and out of the land, suitable for the purpose to be served and did afford the protection to a landowner engaged in the agricultural business. I would take judicial notice.of the fact that within the State of Wyoming, the accepted method of frequent passageway over a fence line is by a cattleguard. The facts indicate that to properly remove the rock, as the contract reads, it is necessary that there be free and open access.
There is a line of cases which hold that the servient owner cannot lawfully maintain a gate across a right of way acquired by grant, where the grant had not specified the condition of the way and where it is emphasized that there has been no legitimate purpose for the maintenance of a gate. I would approve of that rule as applicable here. Jordan v. Guinn, Ark.1972, supra; Sprogis v. Silleck, 1961, Sup., 223 N.Y.S.2d 979; Schaefer v. Burnstine, 1958, 13 Ill.2d 464, 150 N.E.2d 113; Simon Distributing Corp. v. Bay Ride Civic Association, 1955, 207 Md. 472, 114 A.2d 829; Reider v. Orme, 1933, 17 Tenn.App. 497, 68. S.W.2d 960; and Jewell v. Clement, 1897, 69 N.H. 133, 39 A. 582.
It seems to have been consistently held that the servient .estate owner cannot lawfully maintain a gate across a right of way acquired by grant, where the grant did not specify the sort or condition of the way and where the fact existed that a gate was absent at the time of the grant and has continued over a period of time. I likewise would approve of that applicable rule. Reddick v. Williams, 1971, 260 Md. 678, 273 A.2d 153; Sprogis v. Silleck, 1961, su pra; McDonnell v. Sheets, 1944, 234 Iowa 1148, 15 N.W.2d 252, 156 A.L.R. 1043; Kinkade v. Lyons, 1930, 235 Ky. 226, 30 S.W.2d 963; 73 A.L.R. 775; Raisor v. Lyons, 1916, 172 Ky. 314, 189 S.W. 234; Oak Grove Missionary Baptist Church v. Rice, 1915, 162 Ky. 525, 172 S.W. 927; Dickinson v. Whiting, 1886, 141 Mass. 414, 6.N.E. 92; and Welch v. Wilcox, 1869, 101 Mass. 162, 100 Am.Dec. 113.
I would conclude that the gate erected by plaintiff was contrary to the contract terms, unlawful, unnecessary, did not exist at the time nor for a long period following the grant and was an unreasonable interference with the defendant’s access to and from his quarry, not only for himself but for the many contractors purchasing its rock.
Since defendant, through its officers and employees, had the lawful right to access to and from their quarry without it being blocked by a gate, it follows that it had a right to remove the gate. It is unfair and inequitable for defendant to be assessed punitive damages for removal of the gate, when, as a matter of law, it was entitled to an unimpeded right of way in and out of the quarry for both its employees and customers for the rock product. Additionally, it would be inconsistent to reward plaintiffs for commission of an unlawful act.
I would further add that there is absolutely no conflict of testimony with respect to the historical free access in and out of the quarry area. Vondriskas’ point of view as to the necessity of the gate is only their current opinion, bearing no relationship to the past established use and is furthermore in complete conflict with the terms of the contract. I do not therefore think that I am substituting my opinion for that of the trial court. Nor do I believe that I am usurping the factfinding function of the trial court because there was no conflict to be resolved.
It has been suggested that the lawfulness of the gate is not an issue on this appeal. Though the defendant did appeal from that *1192portion of the judgment, it did not argue the point with respect to actual damages because as a practical solution, it recognized the facts of life and installed a cat-tleguard at the point where the unlawful gate was located in order to carry on its business rather than install a gate. It has never acceded, however, to the construction of a gate or to any assessment of punitive damages. A gate and a cattleguard are two entirely different means of passage. A gate interferes with defendant’s quarrying business; a cattleguard does not. • It has appealed and argued the punitive damages award and the unlawfulness of the gate is directed to that part of the judgment, not the grant of actual damages, if that be the case. The defendant has never in any fashion acknowledged or conceded plaintiffs’ right to erect a gate. It probably cares not how many cattleguards plaintiffs want to install, or where.
When there is a reasonable excuse for the conduct of the defendant arising from the provocation or fault of the plaintiffs but not sufficient entirely to justify the act done, punitive damages should not be allowed. Giffin v. Petree, 1932, 226 Mo.App. 718, 46 S.W.2d 609, 614. The defendant’s officers were goaded into their conduct by plaintiffs. While a civil assault case, we find this same principle expressed in Condict v. Hewitt, Wyo.1962, 369 P.2d 278, 280, holding exemplary damages not recoverable when there is provocation by the plaintiff.
The behavior of the plaintiffs was strange, to say the least, and all combined to create a most aggravating situation for the defendant and its officers. The testimony, as disclosed from the transcript, indicates that at the time the contract for the sale of the ranch to the plaintiffs was made, there was a manifestation that the plaintiffs were displeased about the quarry operation and they intended to do something about it and seek to cancel or change the contract. This is borne out by their conduct thereafter. The plaintiffs served notice on the defendant of their demand that the whole quarrying agreement be changed to increase the royalty, provide for cash payments in addition, together with a number of other restrictions and conditions.4 The defendants flatly refused to consider any change in the existing agreement. The trial court very properly held the contract valid.
One of the plaintiffs, Dr. Vondriska, walked and rode his motorcycle around the ranch with a .38 pistol strapped to his hip, which he claimed he was carrying for the purpose of shooting skunks. The plaintiffs accused the defendant operators of setting fire to their house and burning it down, though there was no evidence to support this proposition, (This took place shortly before trial but is illustrative of plaintiffs’ offensive conduct.) The defendant was accused of making short tonnage reports, which was never proven. In addition, plaintiff published various *1193fatuous notices in the local newspaper, directed to the defendant and its officers, one of which read: “NHF Ranch, Rumor Control No. 283-2727,” run for about two months. The plaintiffs had named their ranch the No Hard Feelings Ranch. The purpose of the ad, testified to by plaintiff Dr. Vondriska, a dentist, as he related it: he had been hearing rumors in town about the things that were being asked and things that were being done and things that they were doing and things - that they weren’t doing and if someone really wanted to find out if they were doing something or asking for something that they could call that number and they would tell them the truth on something. On another occasion, the following ad was run: “Card of Thanks. We want to thank those individuals who generously gave of their time and labor on the Sabbath to enlarge our fence post holes and straighten our gates. We certainly feel obligatory in reciprocity. NHF Ranch.” This last advertisement, of course, had reference to the circumstances surrounding the gate incident and was after the fact but again shows a meanness of feeling toward defendant’s officers consistent with his conduct in erecting the gate. In general, the plaintiffs Vondriskas were most disagreeable toward defendant’s officers from the time they acquired the ranch.
In the spring of 1973, plaintiffs put up the new metal gate attached to a post, which gate went across what is known as the canyon road, one of the two roads used for ingress and egress to the defendant’s limestone operation. The defendant was most dissatisfied about this; company personnel left the gate open every time they went through it and one of the plaintiffs testified that he closed the gate some “40, SO or 60 times” before it was inactivated by the Robertses as will be explained.
The defendant Roberts Construction Company is operated by a father and son, C. D. Roberts and Alan Roberts. They were angry about what they referred to as “playing close the gate” and on a Sunday in July, 1973, when going to the quarry operation for weekend maintenance purposes, threw a cable over the fencepost of the gate and with one of their pickups yanked it down. It was bent and the fencepost broken as a result. Cattleguards had been the usual means of access over fence lines and there were several on the canyon road. However, during the trucking operations in and out of the quarry, the cattleguards would fill up with dirt and other material and cattle and horses could go through without any trouble, if there had been cattle or horses on the ranch.
Both Cole and Cooper as well as a former tenant testified that over the long period of years the quarry operations had been in effect, they had never had any problems with the defendant over access nor had there ever been any problem with regard to cattle getting in and out of the ranch. According to the plaintiffs, the purpose of the gate was to control cows and horses on the ranch.
It is obvious from the evidence that the plaintiffs intended to and did make life miserable for the Robertses as well as interfere with the quarry operation. In addition to erecting the gate, on another occasion, they erected a snow fence across one of the cattleguards. At another time, Mrs. Vondriska parked her pickup across the road and hurried to close the gate to prevent one of the Robertses just approaching, from passage, without having to open the gate. Mrs. Vondriska accused him of making obscene remarks and gestures. The erection of the gate was the straw that broke the camel’s back.
I would hold that while the conduct of the Robertses, in tearing down the gate, was not nice, they certainly were provoked by plaintiffs into doing it. Under such circumstances, I would deny punitive damages.
Another problem in that connection is that the $500.00 punitive damages were awarded for both destruction of the gate *1194and blasting without notice. No notice of blasting was necessary because Mrs. Vondriska was at her home watching the activity of preparation to blast out a rock in the road — a perfectly legitimate purpose —and reported that fact to her attorney while the preparations were underway. Blasting is a common occurrence around a quarry. There was a complete absence of any proof of standards to be followed in blasting activity. No actual damage was proven as well. If there are not actual damages, there can be no punitive damages. Martel v. Hall Oil Co., 1927, 36 Wyo. 166, 186, 253 P. 862, 867, 52 A.L.R. 91, 101, reh. den. 255 P. 3. How should that be broken down? The majority offers no answer but completely ignores the matter.
I would have allowed plaintiffs no recovery and reversed the entire judgment of the district court and remanded with directions to vacate its judgment and enter judgment for the defendant on all counts, however, restricting the license to 16.13 acres in that plaintiffs have withdrawn any license as to the remaining portion of the Oppenheimer lands.
. The Agreement for Lease of Limestone Rook Deposits and Grant of Right to Maintain Quarry, in its pertinent provisions, is as follows :
“WITNESSETH: That the parties of the first part for and in consideration of the covenants and agreements hereinafter mentioned to be kept and performed by the said party of the second part, its assigns and successors in interest, do hereby lease upon a royalty basis all of the limestone rock in place upon the following described premises, to-wit:
St St * St St
“upon a royalty basis. The second party shall have the right to mine such quantities at such times as it may desire, all of said limestone rock needed by it in its operations and as royalty therefor second party agrees to pay four cents per ton of two thousand pounds. Two cents of this royalty shall be paid to first parties and the remaining two cents shall be paid direct to Lloyd H. Cole and Blanche L. Cole, predecessors in title of first parties.
“Second party shall keep and maintain suitable scales and first parties shall have the right to inspect the same at any time they desire and second party agrees to make settlement for the limestone rock as mined in ninety day intervals. The second party shall also have the right to maintain on said premises stock piles at all times and such stock piles shall not be paid for until such time as they are moved and weighed.
“Second party has now situated on said premises a rock crusher plant and maintains a rock quarry thereon under an agreement and understanding with Lloyd H. Cole and Blanche L. Cole, predecessors in title of first parties, and it is agreed that it shall have the right to maintain such plant and quarry at all times during the life of this lease and shall have the right of ingress and egress at all times in order to properly mine and remove said rock.
“Second party agrees to pay first parties for loss of any livestock or other property damaged or injured in its blasting.
“The term of this lease shall be for fifty years from date and shall end and terminate on July 25, 2010. During this time second party shall have the exclusive right to maintain his plants and rock quarry thereon for the purpose of mining and removing said limestone rock and this grant shall be an exclusive grant of all the limestone rock contained in these premises but second party shall at all times conduct its operations so as to interfere as little as possible with first parties’ ranching business.”
. “IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED, THAT:
“(1) Defendants Lloyd H. Cole and Blanche L. Cole are the owners of a fully participating, undivided one-half mineral interest in and to all of the limestone in and under and that may be produced from the NE%SW%, NW%SE}4, E%SE% of Section 11 in Township 51 North, Range 63 West of the 6th P.M., Crook County, Wyoming, and that the Defendants Lloyd H. Cole and Blanche L. have (a) the right of ingress and egress to mine the above-described premises and the right to explore for, develop, and produce their share of the limestone without the consent of the Plaintiffs and (b) the right to execute a lease upon their interests without the consent of the Plaintiffs.
“(2) Defendants Lloyd H. Cole and Blanche L. Cole are the owners of a fully partieipat-ing undivided one-half mineral interest in and to all of the limestone, oil, gas, and other minerals in, on, and under the lands described in Exhibit ‘A’, together with the right of ingress and egress to remove the same and are also the owners of one-half of all limestone royalties that may be paid for limestone removed from the above-described premises, and that the Defendants Lloyd H. Cole and Blanche L. Cole have (a) the right of ingress and egress to mine the above-described premises and the right to explore for, develop, and produce their share of the limestone without the consent of the Plaintiffs and (b) the right to execute a lease upon their interest without the consent of the Plaintiffs.”
Exhibit “A” attached to the summary judgment includes the 16.13 acres of so-called Oppenheimer land, upon which the defendant has its stockpile.
. Some interesting cases acknowledging the theme of irrevocability of a license for equitable reasons can be found in other cases though I rely upon Wyoming jurisprudence. See the following: McCollum, v. Hicks, Ky.1953, 262 S.W.2d 816; Keystone Copper Mining Co. v. Miller, 1945, 63 Ariz. 544, 164 P.2d 603; Waters v. Baker, 1940, 190 Ga. 186, 8 S.E.2d 637; Fitzsimmons v. Gilmore, 1938, 134 Neb. 200, 278 N.W. 262; Holt v. City of Montgomery, 1924, 212 Ala. 235, 102 So. 49; Albrecht v. Drake Lumber Co., 1914, 67 Fla. 310, 65 So. 98; Harris v. Brown, 1903, 202 Pa. 16, 51 A. 586, 90 Am.St.Rep. 610; Appeal of Clelland, 1890, 133 Pa. 189, 19 A. 352, 7 L.R.A. 752. See also Annotation, 74 A.L.R.2d 886, “Duration of license in or on real property granted for a specific purpose where no period has been specified.” A panoramic view of real property licenses can be found in 25 Am.Jur.2d (Easements and Licenses, Part II, Licenses in Real Property), §§ 123 through 136, and 53 C.J.S., (Licenses II In Respect of Real Property), §§ 79 through 96. There are no two cases alike and, as observed by Justice Blume in Coumas, the circumstances of each case must govern. His review of the subject cannot be improved upon.
. Compare the terms demanded by plaintiffs with the agreement appearing in footnote 1. Following are plaintiffs’ ultimatums:
“Agreement for lease of Quarry and operation of said Quarry.
“1. Yearly lease payment due April 1st of $4500.00.
“2. Nine cents a ton of said rock. Monthly or 60 day payment schedule.
“3. One thousand dollar security bond against tonnage violations.
“4. Three hundred dollar fine for tonnage violations from September 1972-Feb-ruary 1973.
“5. Roberts Construction will either accomplish or delegate the jobs of cleaning cattle guards, replacing any fencing that has been destroyed or damaged by carriers of material from their quarry and loss of livestock, etc. from carriers.
“6. Lease of 3-4 years with first option on renewal.
“7. Co-operation in planning quarry enlargement and expansion.
“8. Possibilities of dust retardant on haul road approximately one mile. For major jobs that originate from Roberts quarry closing of haul road at end of day at exit on Highway 14 at deseretion [sic] of land owner.
“9. Repair on Canyon Road and minimal maintanance. [sic]”