the time of the judgment." (See also note to Seeley v. Seeley, 12 Ann. Cas. 1059; Re. Alderman, 157 N. C. 507, 73 S. E. 126, 39 L. R. A. (N. S.) 988, and note; 9 R. C. L. Sec. 293.)

In the present case it would serve no useful purpose and only unduly lengthen the opinion to set out the evidence, consisting of oral testimony and affidavits. It appears that at the time the matter of the custody of the child was heard by the Oregon court, there was evidence to the effect that the mother was not at that time a fit person to have the care of the child for reasons not necessary to here state. Whatever objections there may have been to her having the custody of her child, and however well founded such objections may have been, the evidence before the court at the hearing of the present case is, in our opinion, sufficient to sustain the conclusion that those objections no longer exist, and that the mother is now in a situation and condition to properly care for her child. She has a comfortable home with proper surroundings; and her present husband is shown to be able and willing to properly support her and the child. That the welfare of a female child of tender years is best subserved by being in the care and custody of its mother, if she is competent and a fit person to discharge those duties, is generally conceded. The finding of the trial court is a general finding, awarding the custody of the child to the mother until the further order of the court, and granting to the father the privilege of visiting it at all reasonable times. No doubt the court gave full faith and credit to the judgment of the Oregon court as to the facts shown at that time, but found such a change in the condition and the situation of the parties as warranted leaving the child in the care and custody of the mother; and in that conclusion we con

cur.

The judgment of the district court is affirmed.

POTTER, C. J. concurs.

Affirmed.

BLYDENBURGH, J., being ill, did not participate in the de

cision.

GARRETSON v. AVERY.

(No. 915; Decided December 16th, 1918; 176 Pac. 433.) ANIMALS-DUTY OF LAND OWNER TO MAINTAIN FENCE-COMMON LAW RULE-DEFECTS IN PREMISES-INJURY TO LIVESTOCK RUNNING AT LARGE-NEGLIGENCE STATUTES - CONSTRUCTION UNLAWFUL ENCLOSURE-FENCES.

1. The common law rule requiring the owner of domestic animals to restrain them has never been enforced in this state because of different conditions existing that render the rule inapplicable, the owner of such animals having a right to permit them to run at large, and no actionable trespass is committed by such animals lawfully running at large, or straying upon uninclosed lands.

2. The rule of the common law that it is not the duty of a land owner to fence against the livestock of another, is also the rule in this state, in the absence of a contract or statute imposing that duty, or unless such duty has arisen by prescription.

3. Where no obligation rests upon a land owner to fence out another's livestock, or to prevent them from straying or entering upon his land, the owner of uninclosed land is under no duty to make or keep them in safe condition for stock straying thereon.

4. Comp. St., 1910, Section 2578, defining lawful fence, including therein barbed wire, post and pole, and board fences, and Section 2588, making all persons maintaining any unlawful wire fence liable in a civil action for damages to animals, "by reason of such unlawful enclosure", held not to make landowner maintaining barbed wire fence other than described in statute liable for death of a cow which strayed into an alfalfa field, when the alfalfa was a dangerous feed, the words "unlawful enclosure" meaning merely "fence".

5. The penal provisions of Comp. St., 1910, Sections 2587, 2588, are clearly intended not to require land to be enclosed, but to prevent the building or maintaining of a wire fence in any other manner than that declared to be lawful, which might cause injury to animals and perhaps persons by coming in contact therewith. They do not impose the duty of fencing out another's livestock and have no reference thereto.

6. Comp. Stats., 1910, Section 2589, as copied from Revised Statutes, 1899, Section 1984, erroneously omits the words "on or before the first day of August, 1888", which were

included in the original enactment, so that there was no general provision in the original section for the reconstruction of unlawful wire fences constructed after that date.

ERROR to the District Court, Big Horn County, HoN P. W. METZ, Judge.

Action by G. J. Garretson against H. C. Avery. Judgment for defendant, and plaintiff appeals.

R. B. Landfair, for appellant.

If one constructs a wire fence, it must be a lawful fence, as defined by Section 2578, Comp. Stats. 1910; and after so constructed, it must be maintained as a lawful fence, else the owner is liable for all damages to stock by reason thereof under Section 2588 Comp. Stats. 1910. Stock owners have implied license to depasture their stock on a public range and are not guilty of any contributory negligence in so doing. The negligence of respondent in not maintaining a lawful fence was the approximate cause of the death of the animal. (Sections 2578, 2588 Comp. Stats. 1910.) If a land owner has a lawful fence and a breachy animal breaks through and does damage, the owner of the animal is liable. (Section 2584, Comp. Stats. 1910.) Appellant had a right to assume that respondent maintained a lawful fence and an injury to appellant's stock by reason of respondent's unlawful enclosure creates a liability. (Loveland v. Gardiner, 79 Calif. 317, 21 Pac. 766.) An enclosure is any ground enclosed by a lawful fence. (Smith v. Williams, 2 Mont. 195.) Stockgrowers have an implied license to depasture the public range. (Martin v. Sheep Company, 12 Wyo. 432; Live Stock Co. v. McIlquam, 14 Wyo. 209; Section 2614, Comp. Stats. 1910.) Where animals were lawfully running at large, recovery may be had unless the owner was guilty of actual negligence. (Isbell v. R. R., 27 Conn. 393, 71 Am. Dec. 78; Haughey v. Hart, 62 Iowa 96, 17 N. W. 189; Kerwhacker v. R. R., 3 O. St. 172, 62 Am. Rep. 246; Wilhite v. Speakman, 79 Ala. 400; 19 Cyc. 487; 29 Cyc. 444.)

R. B. West, for respondent.

The case arises under Section 2588, Comp. Stats. 1910. Defendant admits that in Wyoming livestock may lawfully run at large, but contend that if one maintains an unlawful fence, he will be liable in damage for injury occasioned by stock coming in contact with it; an enclosure is an artificial fence surrounding one's estate. (Bouvier Law Dictionary.) The only case we have found sustaining the damages for injuries to animals coming in contact with an unlawful fence is that of Sisk v. Crump, 2 Am. St. Rep. 213. The general rule is that no liability exists. (29 Cyc. 444.) The owner of land not enclosed by a lawful fence was held not liable for an ox killed by eating green corn upon the land. (Herald v. Myers, 28 Ia. 378.) A land owner is not permitted to construct traps or maintain dangerous places upon his land. but this rule has no bearing upon the case at bar. The recovery in the words of the statute is limited to injuries sustained by reason of unlawful wire fences. (Section 2588, Comp. Stats. 1910.) Apparently the legislative intention in limiting the liability to wire fences was that such fences improperly constructed or poorly maintained constituted a trap and might injure stock. Under plaintiff's theory, a land owner growing a crop of alfalfa unfenced would be liable to the owner of stock straying upon the same and dying from the effects of eating the alfalfa, but if the owner should commence the construction of a fence enclosing his land and before the completion thereof, cattle should stray upon his land and die from the effect of eating alfalfa, the land owner would be liable in damage. The result of such a construction would be so utterly absurd that no court would give it consideration. It is respectfully submitted that no liability is shown and that the judgment of the District Court should be sustained.

POTTER, CHIEF JUSTICE.

This cause was heard in the district court upon a general demurrer to an amended petition, and the demurrer was sustained. The plaintiff excepted thereto and elected to

stand upon the petition without pleading further, and thereupon a judgment was rendered in favor of the defendant. The case is here on appeal.

The petition alleges in substance: That on or about July 20, 1916, the defendant was occupying, using, enjoying, maintaining and in charge of a certain enclosure in Big Horn county, this state, to-wit: The NE4 of the NE of Sec. 27, Twp. 50 N., Range 93 W., within which said enclosure the defendant was cultivating and raising alfalfa grass. That he did not keep or maintain a lawful fence around said enclosure, but that the fence was unlawful in this: That in some places there were only two wires of the wire fence around the enclosure, between posts about 30 feet apart and without any stays between the posts; that the wires were loose and sagging; and the fence was in such condition that it would allow cattle to stray and enter the enclosure. That green alfalfa grass is a well known danger to cattle used to dry feed only. That on or about said date the plaintiff was the owner of a cow of the value of one hundred dollars, which he had allowed on that date and previous thereto to run upon the public range and was used to dry feed only. That the eating of green alfalfa grass by cattle used to dry feed only causes them to bloat and is invariably fatal to them, a fact generally known to all cattle raisers, ranchers, and well known by the defendant. That on or about said date, by reason of the careless, negligent and unlawful maintaining by the defendant of his said fence, the said cow of the plaintiff strayed in and upon the said enclosure and ate green alfalfa grass and thereby became bloated and died, to plaintiff's damage in the sum of $100. And judgment was prayed for that sum with interest and costs.

It will be observed from these allegations that the right of action or claim for damages is based solely upon the alleged fact that defendant maintained an unlawful wire fence around said land, referred to as his enclosure, which would allow cattle to stray and enter thereon. No other act of negligence or violation of duty is alleged, nor that the de