The defendant in error, James King, Sr., commenced this action against the plaintiff in error, James Hardman, in the District Court of Albany County, to recover damages for alleged trespass upon his lands. The petition is in two counts, one charging a continuing trespass in 1903, and the other a like trespass in 1904. Both counts are identical except as to the year, and allege that on the first day of June of said years and on divers other days between that *507•clay and the seventh day of September in said years, said defendant unlawfully and with force broke and entered the •close of plaintiff situated around and enclosing the following lands and premises of plaintiff, to-wit: Sections 3, 5, 9, 16 and 17, Tp. 13 N., R. 75 W., in Albany County, Wyoming, and depastured the same and said lands of plaintiff, with cattle, trod down the grass and crops of plaintiff and converted the same to his own use, and otherwise injured the said lands and premises of plaintiff to his damage in the sum of one hundred dollars, for which sum with interest he prayed judgment. The defendant’s answer to each count of the petition was a general denial. The case was tried to a jury, resulting in a verdict for plaintiff on both counts. A motion for new trial was denied by the •court, judgment entered on the verdict and defendant brings error.
It was admitted at the trial that King was the owner of sections 3, 5, 9 and 17, and that he had a lease of section 16. It was also conceded in argument in this court that King’s lands, except a small fraction of section 17 and a part of section 16, were enclosed by a fence, which enclosure also included sections 4, 8, W. 10 and part of S. E. % 10 which were vacant unoccupied government lands, and also included the N. E. of section 10, upon which Jessie K. Hardman, daughter of plaintiff in error had a homestead filing. King owned the greater part of this fence but there was a small part of it extending across the southeast corner of said homestead which belonged to Hardman or to said entrywoman, in which piece of fence there were bars opening onto the county road. It was through these bars that Hardman turned his cattle onto said homestead and allowed them to roam at will. There is no evidence in the record that he at any time drove the cattle from either said homestead or the government lands ■onto King’s land. The cattle were peaceably put upon said homestead and without objection from anyone, and from there they strayed upon King’s land, there being no fence *508separating his lands from said homestead or the government lands included in the enclosure. Two witnesses on behalf of King testified that on one occasion about June 20 or 21, 1904, Hardman's son ¡ drove the cattle from the west part of section 16 onto section 17, while Hardman’s son who did this driving of the cattle testified on behalf of his father that he drove them from section 16 through a part of section 9 onto section 8, a government section. This is about the only conflict in any material part of the testimony. It was agreed at the trial that the value of pasturage for cattle in that section of the country was twenty-five cents per head per month.
The court, over the objection of counsel for Hardman, instructed the jury as follows: “The jury are instructed to find for the plaintiff, James King, Sr., upon the two causes of action of his petition, and to assess such damages under each cause of action as they shall find from the evidence that said plaintiff is entitled to for trespasses alleged in the said causes of action of his petition.” This was the only instruction given to the jury except one as to interest. Counsel for Hardman requested the court to instruct the jury that, “Under the evidence the plaintiff cannot recover anything- upon the first cause of action. You are, therefore, instructed to find for the defendant upon that cause of action.”' A like instruction was requested as to the second cause of action. Counsel for Hardman also requested the court to give the following instructions: “The plaintiff cannot recover for any damage done by the defendant’s cattle to the plaintiff’s lands or for any grass consumed by them except such as may have been caused by the act of the defendant, or his agent, in driving, herding or keeping his cattle upon plaintiff’s lands.” Also, “The law does not allow recovery for damages caused by straying cattle. It is the duty of the land owner to fence against them. Only where cattle are herded, put or kept by the owner upon another’s land, can there be any such recovery.” A number of other instructions embracing the same idea as in the last *509two above set out, but 111 different language, were requested. The court refused to give any of the instructions so requested. To the giving of the instruction which was given, and to the , refusal of the court to instruct as requested, counsel for Hardman duly excepted and assigns such giving and refusal as error. It was also made a ground in the motion for a new trial that the verdict was not sustained by sufficient evidence.
The theory of counsel for defendant in error seems to be that all he was required to do was to show that the cattle were upon the land and that that constituted a trespass for which King was entitle'd to recover damages unless Hard-man could justify by proving that the cattle had strayed there from the adjoining lands; and this seems to have been the view taken by the court. It is settled in this state that no actionable trespass is committed upon unenclosed lands by reason of cattle straying thereon from adjoining lands. (Cosgriff Bros. v. Miller, 10 Wyo., 190; Martin v. Platte Valley Sheep Co., 12 Wyo., 432; Haskins v. Andrews, 12 Wyo., 458.) In this case the lands of King must be regarded as unenclosed. They were not separated from the government lands nor from said homestead by a fence, and King could acquire no right to the exclusive possession of the government lands by reason of having unlawfully enclosed them with his own, nor could he by such enclosure deprive Hardman or anyone else from peaceably turning cattle thereon. (Clemmons v. Gillette, 83 Pac., 879.) He did not own the fence or the bars through which the cattle were driven into the-enclosure nor the land upon which'they were turned loose. In order therefore to make out a case -of trespass under such circumstances it was necessary for him to allege and prove that the cattle were put upon his land, and it was not sufficient to show that they had been put on adjoining lands and were afterwards found on his land. (Merritt v. Hill, 104 Cal., 184; Walker v. Bloomingcamp, 34 Ore.,. 391.) The burden was upon King to prove a trespass, and to do so he offered evidence that at *510one time the cattle were driven Hardman’s son from section 16 to section 17, thus tending- to show that they were being herded and kept on his land. To negative the holding or herding Hardman introduced evidence that they were not so driven but were being driven from King’s lands-onto the government land. This evidence was not in the nature of a justification but in denial of a herding- of the cattle on King’s land and was admissible under the general denial, and the question as to which of these statements was true should have been submitted to the jury under proper instructions. If the former was true King would be entitled to recover such damages as the evidence showed he sustained by such wrongful act; but, on the other hand, if the cattle had strayed onto King’s land and were simply being driven therefrom, that fact would not constitute an actionable trespass for which he could recover damages.
The District Court erred in giving the peremptory instruction to the jury to find for King on both causes of action and in refusing to instruct to find for Hardman on the first cause of action and in refusing to instruct that King could not recover for any damages done by cattle straying upon his unenclosed lands from adjoining lands.
For the errors above pointed out the judgment of the District Court is reversed and the cause remanded for a new trial. Reversed.
Potter, C. J., and Scott, J., concur.