(concurring in part and dissenting in. part).
My analysis and research in this case has led me to a point that causes me to dissent from some of the views of the majority, and at the same time prevents me from joining in the dissent of Justice Rap-en I concede that my sense of justice also is affronted by a determination resulting in the removal of this stockpile of crushed rock from a relatively unproductive tract of land to a tillable and productive tract of land at some considerable expense to Roberts, solely to satisfy the whim of the plaintiffs. The questionable desirability of this result is compounded by the knowledge imparted by the record that Roberts now has an adjudicated right to mine the very premises it is required to vacate. Should Roberts pursue its right to mine, which will be more feasible with the stockpile removed, those mining operations well may leave the plaintiffs in a worse situation. Nevertheless, I cannot arrive at the total irrevocability of this license as Justice Raper has done. The record simply does not demonstrate circumstances that permit me to substitute my judgment for that of the trial court and hold the license entirely irrevocable under the applicable precedents. I cannot, however, join in the majority opinion on this issue. I find a solution to my dilemma in my conclusion that Roberts was possessed of a license coupled with an interest. 5 Restatement of the Law of Property, § 513, p. 3121 (1944). This concept is not new to the law of Wyoming, and is recognized in Coumas v. Transcontinental Garage, Inc., 68 Wyo. 99, 230 P.2d 748 (1951), and Metcalf v. Hart, 3 Wyo. 513, 27 P. 900 (1891).
While all the facts and circumstances do not permit me to depart from an apparent conclusion of the trial court that all the activities of Roberts were not within the scope of the license to it (an apparent acquiescence found in the record must be resolved by the trial court) there was a license to stockpile the crushed product of the quarry on the lands in issue. The existence of such a license is recognized by the majority, and the trial court recognized Roberts’ ownership of the crushed rock in the stockpile, which is personal property. This ownership of the crushed rock leads to my conclusion that Roberts was possessed of a license coupled with an interest.
The interest upon which I rely would be limited at any given point in time to the crushed rock then in the stockpile. Any license to stockpile in the future I hold to be revocable, and in this instance it was revoked by the institution of the action. To the extent that the license is not revocable because it is a license coupled with an interest, I would limit the license to the disposition of the existing stockpile in the usual course of the business of Roberts. The terms of the creation of this license were that the crushed rock could be stockpiled on the premises and removed in the *1195usual course of Roberts’ business. This is demonstrated by the historical application of the license, and to the extent that the license is necessary to effectuate the interest with which it is coupled it is not subject to termination contrary to the terms of its creation. S Restatement of the Law of Property, § 519, p. 3137 (1944). See also 1A Thompson on Real Property, § 225, p. 242 (1964 Replacement). The trial court would be called upon to receive additional evidence to determine what a reasonable time would be to remove the stockpile in the usual course of the Roberts’ business as the sales of the crushed rock occurred, but I would not view this as imposing an undue administrative burden upon the trial court. In the alternative, I would permit the immediate removal of the stockpile upon the condition that the plaintiffs pay the expenses of removal.
I also must dissent from the views of the majority with respect to the propriety of awarding punitive damages to the plaintiffs. In addition to the reasons suggested by Justice Raper, my examination of the record discloses that the claim to punitive damages was not pleaded or asserted in any manner by the plaintiffs. Recognizing the potential applicability of Rule 15(b), W.R.C.P., this is an instance in which the evidence which was introduced was offered and received to support the basic issue of breach of contract. Roberts well may not have been conscious of any relevance to the issue of punitive damages, which was not raised by the pleadings, unless that fact was specifically brought to its attention. Under these circumstances the pleadings will not be deemed amended under the first portion of Rule 15(b), W.R.C.P. See 6 Wright and Miller, Federal Practice and Procedure, § 1493, p. 466 (1971), and authorities there cited.
With respect to the issues of the right to damages for violation of the Wyoming Air Quality Control Act and the right of the plaintiffs to recover their costs, I concur in the views expressed in the majority opinion.