dissenting:
This is an action for damages for trespass by defendants upon uninclosed or unfenced land of plaintiff. The injury for which redress is sought is alleged to have been caused by *532the defendants’ cattle entering upon the plaintiff’s land and pasturing upon plaintiff’s corn crop. The trial court sustained defendants’ demurrer to the complaint, and the plaintiff electing to stand by her complaint, the court dismissed the action. The plaintiff brings the cause here for review.
The theory of the defendants is that upon the case made by the complaint, the plaintiff is barred from the right to recover damages from defendants by the Colorado fence statute which provides, among other things, that “no person or persons shall be allowed to recover damages for any injury to any crops * * * unless the same at the time of such trespass or injury, was enclosed by a legal and sufficient fence.” Session laws 1885, p. 221; sec 2589 R. S. 1908; sec 2944 Mills Ann. Sts. 1912. According to the demurrer, the complaint is alleged to be insufficient because it does not appear “by any allegations that the defendants willfully trespassed upon the uninclosed premises and property of the plaintiff, or that they, or either of them, willfully or at all drove their cattle upon the premises or property of the plaintiff.”
It is true that the complaint did not expressly contain such allegations as the defendants in their demurrer claim were omitted. If the complaint had alleged that the defendants willfully drove their cattle upon the uninclosed land of the plaintiff, the fence statute would have no application or bearing in the instant case. Bell v. Gonzales, 35 Colo. 138, 83 Pac. 639, 117 Am. St. Rep. 179, 9 Ann. Cas. 1094. A willful trespasser cannot invoke the provisions of this statute. Sweetman v. Cooper, 20 Colo. App. 5; 76 Pac. 925; 3 C. J. 132, sec. 402; 2 Cyc. 398; 1 R. C. L. 1104, sec. 47. But a willful trespass may be committed by the owner of animals without driving them upon the land of the complaining party. It is committed if the owner turns his cattle loose upon other land, knowing that they will necessarily enter the lands of the injured party and intends that they should do so. Lazarus v. Phelps, 152 U. S. 81, *53314 Sup. Ct. 477, 38 L. ed. 363; Vanderford v. Wagner (N. M.), 174 Pac. 426.
In the case of Light v. United States, 220 U. S. 523, 31 Sup. Ct. 485, 55 L. ed. 570, the Federal Government sought and obtained an injunction against the defendant Light enjoining him from grazing his cattle upon a public forest reservation without a permit. The bill charged that the defendant, when turning his cattle loose, knew and expected that they would go- upon the reservation, and took no action to prevent them from trespassing. The complaint in the instant case contains allegations of a similar import. In the Light case the evidence supported the allegations of the bill. The defendant sought to justify his position, in the respect above noted, on the ground that the fence statute of Colorado provided that a landowner could not recover damages for trespass by animals unless the property was inclosed with a fence of designated size and material. The Supreme Court of the United States, in affirming the decree, stated that statutes of this kind “do not give permission to the owner of cattle to use his neighbor’s land as a pasture.” -, , ; . , ■
The court in its opinion also said:
“Fence laws do not authorize wanton and willful trespass, nor do they afford immunity to those who, in disregard of property rights, turn their cattle loose under circumstances showing that they were intended to graze upon the lands of another. This the defendant did, under circumstances equivalent to driving his cattle upon the forest reserve. * * *
“It appears that the defendant turned out his cattle under circumstances which showed that he expected and intended that they would go upon the reserve to graze thereon. Under the facts the court properly granted an injunction. The judgment was right on the merits, wholly regardless of the question as to whether the government had inclosed its property.”
*534The complaint in the instant case alleges that almost daily the defendants turned their cattle loose out of their gates at their home and “upon the public highway near plaintiff’s cropthat the defendants “well knew, that, by so turning said cattle at large the same would seek and get into and eat and destroy plaintiff’s corn;” that against plaintiff’s remonstrances the defendants turned their cattle loose, “knowing and expecting that they would go upon the crop where there was good feed, and have taken no action to prevent such trespassing, but have intended that their cattle would pasture and graze upon plaintiff’s crop.” These allegations distinguish this case from that of Richards v. Sanderson, 39 Colo. 270, 278, 89 Pac. 769, 121 Am. St. Rep. 167, relied on by defendants. That case recognizes, without disapproval, the rule announced in Lazarus v. Phelps, supra, and is not in conflict with the views herein expressed nor with the Light case. See also Mower v. Olsen, 49 Utah 373, 164 Pac. 482; Vanderford v. Wagner, supra. In my opinion the complaint is sufficient as against the demurrer, and the trial court should have overruled the demurrer.