concurring.
I concur with the opinion of the majority but feel it necessary to point out that the Sears alleged forfeiture in their original complaint, but then inexplicably omitted that theory in their amended complaint, which was submitted after trial. The evidence at trial suggested a forfeiture, and indeed the trial court’s findings strongly suggest that a forfeiture has occurred:
“18. That plaintiffs have consistently used all of the 1872 and 1873 rights decreed to Sadie Beecher in the Jobe Adams’ decree, except for 26 inches, for irrigation purposes during the irrigation season of each year, from the year 1939 to the present.
“19. That such use by plaintiffs, or their predecessors, has continued for a period of more than thirty-seven (37) years.
“20. That the flow of such water so used by plaintiffs is more particularly described as follows:
(1) .36 of a cubic foot, or 18 inches, with a priority of April 30, 1872;
(2) .34 of a cubic foot, or 17 inches, with a priority date of April 30, 1873;
(3) 1.2 of a cubic foot, or 60 inches, with a priority date of April 30, 1879;
(4) That such water is legally described as the water allocated to Sadie Beecher in the Jobe Adams’ decree of 1928, as recorded in the office of the County Recorder of Cassia County, Idaho.”
The further finding that “defendants Berryman .. . made no objection during the years that plaintiffs have received and beneficially used the water” is additional evidence of a forfeiture.1 If on remand the district court should fail to find the requisite detrimental reliance necessary to support its theory of equitable estoppel, the Sears should be given leave to amend their amended complaint, pursuant to I.R.C.P. 15(b), to conform to the evidence adduced at trial, which indicates that a forfeiture of the 25 inches may indeed have occurred. *850Of course, the Sears’ priority date to the water under such a forfeiture would necessarily date from the end of the 5 year forfeiture period, while under a theory of equitable estoppel the original priority date would apply.
I also feel constrained to observe that the majority makes an entirely unwarranted assumption in stating that “the doctrine of forfeiture is inconsistent with appellant’s argument that they enjoy the right to the disputed waters while retaining the original priority dates established in the Jobe Adams decree,” and that “the cause was tried on the theory that the Sears had established a right to the disputed water with the original priority dates of 1872, 1873 and 1879, and not that they had established this right with the priority date of 1944.” The assumption is that the Sears are claiming a right with “priority dates established by the Jobe Adams decree.” In fact, neither their original complaint nor their amended complaint claimed a specific priority date at all, and they claim no specific priority date on appeal. References to priority dates are given only to describe the particular water claimed. There is no separate assertion of a right to particular priority dates.2 The Sears do claim, repeatedly and insistently, that they began appropriating the 51 inches in question in 1939, and that they have applied such water to a beneficial use since that time. The evidence produced at trial was directed at establishing this fact. If the Sears were arguing that they had, through forfeiture, obtained rights to the water with a priority date established by the Jobe Adams decree, I would have to concur with the statement by the majority. Such a claim would be internally contradictory and subject to being stricken. However, no such claim is made and it should be made clear that, on remand, the court is free to consider the effects of a forfeiture. Hence my separate concurrence.
. It is not clear from the record whether the trial court actually believed that the Sears’ use of this 25 inches was exclusive. This should be clarified on remand.
. In their amended complaint, submitted after trial, the Sears do state that they have adversely used “all said water right with a priority as of the years 1872, 1873 and 1879 . . ..” This reference to priority dates is ambiguous, but may be interpreted as a claim to water which includes a claim to those priority dates. While it does not appear to be in the interests of justice to so interpret the phrase, even such an interpretation would not preclude a forfeiture from being found under the other allegations in the Sears’ amended complaint. Certainly the Sears do not claim a right to water with those dates, and only those dates.