concurring in the reversal, but dissenting in the disposition:
I disagree with the majority’s analysis of the law governing the liability of owners for damage caused by their trespassing livestock and its conclusion that defendant appellant Yanke cannot be held liable for the damage his cattle caused plaintiff respondent Maguire’s hayfield.
The majority is correct in stating that the English common law rule that an owner is strictly liable for trespasses of his animals has generally not been applicable in Idaho. However, the rule which the majority finally adopts after an inconsistent analysis, some of which I frankly do not understand, is that except for cities, villages and herd districts, all land in the state of Idaho is “open range” upon which cattle can roam unfenced without incurring liability upon its owners for trespass. I do not believe that is the law in Idaho.
While the statutes and the cases have addressed the “open range” concept from the earliest times, it was not until 1961 that the legislature made any attempt to define “open range.” In that year the legislature enacted I.C. § 25-2118 providing that the owner of a domestic animal running on the “open range” which strayed upon a highway right of way was not liable for damage to any vehicle or injury to person riding therein. That statute defined “open range” as “all uninclosed lands outside of cities, villages and herd districts, upon which cattle by custom, license, lease, or permit, are grazed or permitted to roam.” In 1963 the legislature amended the herd district law, I.C. § 25-2402, to similarly define “open range.”1 The majority refuses to follow those two express legislative definitions of “open range.” It states, ante at 92, that *838“[t]he statutory definitions of ‘open range’ as set forth in I.C. § 25-2402 and 25-2118 are inconsistent with the case law concept of ‘open range’ as unfenced, unenclosed public range, domain or common. Kelly v. Easton, 35 Idaho 340, 207 P. 129 (1922); . .” However, the so-called case law concept of “open range” which the majority gleans from Kelly v. Easton and the other cited cases was based upon statutes, as shown by the following portion of the Kelly opinion quoted by the majority, ante at 88;
“ ‘The common-law rule that every man must confine his own cattle to his own land does not obtain in this state, and in Strong v. Brown, 26 Idaho 1, 140 P. 773, 52 L.R.A.,N.S., 140, Ann.Cas. 1916E, 482, it is held that under our statute (C.S., c. 82), if a landowner fails to fence out cattle lawfully at large, he may not recover for loss caused by such livestock straying upon his uninclosed land.’ ” (Emphasis added.)
The concept of open range which the majority found in Kelly v. Easton, supra, and prior cases was not based upon any common law or case law concept, but was actually based upon pronouncements by the legislature in chapter 82 of the Compiled Statutes entitled “Animals Running at Large and Trespassing.” The majority’s conclusion that the clear legislative pronouncements in I.C. §§ 25-2402 and 25-2118 are inconsistent with case law definitions and concepts of open range fundamentally misconceives the basis upon which those early cases were decided.
The legislature has said in I.C. § 25-2402 and 25-2118 that “open range” includes only those unenclosed lands upon which by custom, license or otherwise livestock have been permitted to roam. The “open range” rule which the majority would apply in this case is inapplicable to the facts of this ease because, as the trial court found, the lands in question here were not unenclosed lands upon which livestock have by custom, license or otherwise been permitted to roam.
The majority asserts, ante at 90, that in Idaho there are only two classifications of land for purposes of determining the liability of livestock owners for damage done by their animals to another’s land. One class includes cities, villages and herd districts, created pursuant to I.C. §§ 25-2401 et seq., where animal owners are strictly liable for damage their animals do to another’s property. The second classification encompasses, they assert, “ ‘open range’ as defined by I.C. § 25-2402 and all other areas of the state not within cities, villages, or already created herd districts,” ante at 90, where the animal owner bears no liability unless the damaged property was enclosed by a legal fence. The majority reverses this case, claiming that the trial court erred in recognizing a third classification of land relating to liability for damage caused by roaming livestock. This third classification would encompass land where livestock by custom, license, lease or permit have not been permitted to roam at large or graze. Although no statutory herd district may have been created in these areas, the trial court in essence reasoned that the custom to fence cattle in precludes application of the traditional open range rules. I agree with the trial court that the legislative definitions of “open range” which are contained in I.C. §§ 25-2401 and 25-2118 support the conclusion that the open range rule is not to be applied in Idaho to lands where cattle by custom have not been permitted to roam unfenced.
If, as the majority holds, all land in Idaho is either in open range or in a herd district, city or village, there would be no land in the state where a herd district could be created. I.C. § 25-2402 specifically states that open range cannot be organized into herd districts. The majority avoids reaching the incongruous result that there is no land in Idaho where a herd district may be created only by saying, ante at 92, that the legislature’s definition of open range in I.C. §§ 25-2402 and 25-2118 “was not intended to and does not change the law of this state that with the exception of cities, villages, and herd districts, livestock may run at large and graze upon unenclosed lands in this state.”
*839The majority contends that the two statutory open range definitions are to be construed as having no effect on the operation of the Idaho open range law. These two provisions are the only legislative definitions of open range which appear in the Idaho Code and, as discussed hereafter, this Court has never had occasion to define judicially which lands in the state are open range lands. I believe the majority errs in assigning to our legislative definitions of “open range” the unnecessarily narrow import that it uses to reach its result in this case.
The two legislative definitions are explicit in defining the concept of “open range”. In the absence of any other judicial or legislative interpretation of the term “open range” indicating that the two statutory provisions in I.C. §§ 25-2402 and 25-2118 should not be used in delineating the extent of the open range rules in Idaho, this Court should not arbitrarily decide that those definitions are inapplicable to the determination of liability in this case. We should interpret our statutes to recognize that for purposes of determining liability of trespassing animals, there are three, not two, classes of land in Idaho: (1) open range, as defined in I.C. §§ 25-2118 and -2402, where cattle by custom have been permitted to roam; (2) herd districts, villages and towns, where owners are liable for damage caused by their trespassing animals “without regard to the condition of [their] fence,” I.C. § 25-2408; and (3) non-open range, such as the land in this case which is neither in class (1) nor (2), where strict liability has not been imposed on animal owners, but where the custom has not been to allow animals to graze unfenced.
Present conditions and practices in Idaho are inconsistent with the expansive definition of open range enunciated by the majority. The open range laws resulted from the unique conditions existing during the early days of the western development when vast areas of grazing land and the sparse population then living in the area made it more practical to fence animals out of the relatively small sections of land devoted to farming than to fence cattle in on the larger grazing ranges. However, conditions in Idaho have changed substantially. This Court should not expand liability rules tailored for nineteenth century open range practices in contradiction to the recent statutory enactments concerning open range definitions when the conditions for which they were developed have substantially passed.
As previously noted, the majority found the definition of open range as defined in I.C. § 25-2402 to be “inconsistent with the case law [definition and] concept of ‘open range’,” relying upon Kelly v. Easton, supra; Strong v. Brown, 26 Idaho 1, 140 P. 773 (1914); City of Bellevue v. Daly, 14 Idaho 545, 94 P. 1036 (1908); and Swanson v. Groat, 12 Idaho 148, 85 P. 384 (1906). However, no Idaho case has addressed the issue of whether all lands in this state outside of cities, villages and herd districts were “open range.”
The first Idaho case in point of time to mention the open range rule is Johnson v. Oregon Shortline Ry. Co., 7 Idaho 355, 63 P. 112 (1900). That case involved an interpretation of Revised Stat. 2679 (1887), which required railroads to maintain fences along their tracks whenever the tracks passed through or abutted private property. This Court held that Revised Stat. 2679 [presently I.C. § 62 — 406, as amended] was a police regulation for the benefit of the general public and was not a statute intended solely to benefit adjoining or abutting private landowners, as was urged by the defendant railroad company. The fact that plaintiff’s animals entered the railroad right of way from private property not owned by the plaintiff prior to being struck by a passing train was held not to bar plaintiff’s recovery. Johnson did not decide the meaning and extent of the Idaho open range law.
In Swanson v. Groat, supra, the Court held that in this state a stockman could not deliberately drive animals onto the unfenced land of another and escape liability for trespass, even if the open range rule were applicable. The extent of the open range rule was not decided. The rule in *840Swanson applied whether the land upon which the animals were driven was open range or not, as evidenced by the following passage:
“[0]ne who willfully and deliberately drives his stock upon the lands of another, whether inclosed or uninclosed, and holds, herds and grazes them upon such lands over the ‘protests and objections’ of the owner is liable in damages for the trespass. Such willful, deliberate and intentional conduct cannot be justified upon the theory that the stock had a right of their own accord to roam over and graze upon such land.” 12 Idaho at 151-52, 85 P. at 385 (emphasis supplied).
In City of Bellevue v. Daly, supra, the plaintiff city was held not entitled to have the defendant landowner enjoined from allowing his cattle to roam freely upon his own land because the herd was polluting drinking water in unfenced city ditches which crossed the pasturage. The Court referred to the open range rules, noting that it would be incongruous to require the defendant landowner to fence his cattle off the city’s easement across his own land while no such fencing requirement would have existed if the cattle were on open range lands. The Court said, “Certainly he cannot have any less right on his own lands and in his own field than he would have on the public common or public domain.” 14 Idaho at 550, 94 P. at 1038. The court did not decide whether the land surrounding the ditch was open range. It concededly was not. The court was merely postulating that had the land been open range the owner would not have been required to fence the cattle out of the ditch, and that surely on his own private ground he would have no greater obligation.
In 1914, in Strong v. Brown, supra, the owner of lands subject to the open range rule was held not to be liable for damages to livestock running at large which were injured by falling into pits or excavations on the property of the owner. There was no question but that the land involved in the action was open range. The Court was not called upon to define what lands in Idaho were governed by the open range rules.
The question presented in Kelly v. Easton, 35 Idaho 340, 207 P. 129 (1922), was whether a landlord could claim open range privileges against his tenant. The Court held that the open range rules do not apply to the relation existing between a landlord and his tenant. Once again, the Court was not called upon to determine the extent of open range in Idaho.
These early cases, cited by the majority as providing a case law definition of open range inconsistent with the legislature’s definitions in I.C. §§ 25-2118 and -2402, enacted in 1961 and 1963 respectively, simply do not contain the judicial definitions that the majority claims to find in them. Each was concerned with an issue different from that which we face in this case, i. e., what lands in Idaho are subject to the law of the open range. How the legislatures of our sister states have approached the open range problem does not relieve us of the duty to examine our own law regarding the open range privilege in Idaho as it exists today in light of the recent enactments of our legislature and the conditions which now prevail in the state. Our statutes contemplate three classes into which lands in Idaho may fall for purposes of determining the liability of livestock owners: (1) “open range”, as defined in I.C. §§ 25-2118 and -2402, where cattle by custom have been permitted to roam; (2) herd districts, villages and towns, where owners are liable for damage caused by their trespassing animals “without regard to the condition of [their] fence,” I.C. § 25-2408; and (3) non-open range, such as the land in this case, which is neither in class (1) nor (2), where strict liability has not been imposed on animal owners, but where the custom has not been to allow animals to graze unfenced.
In Soran v. Schoessler, 87 Idaho 425, 394 P.2d 160 (1964), construing I.C. § 25-2118,2 *841this Court recognized that in Idaho there are three classifications of land with respect to laws governing livestock control: (1) open range, where a livestock owner has no duty to fence his animals in; (2) herd districts, where an owner is strictly liable for damages his animals do in trespassing upon the lands of others; and (3) land neither open range nor in a herd district. 87 Idaho at 431, 394 P.2d at 163. The issue in Soran was whether a cattle owner was liable to a motorist for damages which resulted in a collision with defendant’s cow on a public highway. I.C. § 25-2118 states that a stockman is not liable for damages in such a collision if the animal involved is running on “open range,” defining open range as noted above. The accident in Soran did not occur in a statutory herd district. However, the Court held that the collision did not occur in “open range” either:
“There [is] no evidence adduced in this cause to show that in the particular area where the accident occurred appellant’s cattle, by custom, license, lease, or permit, were grazed or permitted to roam on unenclosed lands such as referred to in such section of the statute.
“As hereinbefore stated the fenced pasture land, owned by appellant, was neither open range nor located in a herd district area. . . . ” 87 Idaho at 431, 394 P.2d at 163.
Upon finding that open range privileges did not exist in the area involved, the Court held that the defendant stockman should be liable if he were negligent in containing his herd, since neither the liability principles of a herd district nor the cattleman’s privilege of the open range rule were applicable in the case.
“The evidence shows that the appellant had allowed the fence to deteriorate and that at the time of the accident involved in this cause the fence did not conform to standards prescribed for fences, I.C. §§ 35-101 and 35-102; the evidence supports the findings in that regard; also it sustains the trial court’s conclusion that appellant ‘failed to act as a reasonable and prudent person with respect to the maintenance of this pasture fence and in allowing his livestock to be on a public highway’; that respondent acted as a reasonable and prudent person at the times mentioned; that appellant was guilty of negligence in the premises; and that such negligence constituted the proximate cause of respondent’s damage.” 87 Idaho at 431-32, 394 P.2d at 163.
In my opinion, in those areas of the state where by tradition and custom livestock have not been allowed to roam and graze unfenced, but where no statutory herd district has been formed by the landowners, a negligence standard should be used to determine the liability of a livestock owner for damages done by his animals in trespassing, whether upon highways as in Soran, or upon the lands of another. This would strike a middle ground between the no liability rule on open range and the strict liability imposed upon animal owners in a herd district. The standard to which a trespassing animal’s owner would be held under this approach would be that of a reasonably prudent livestock owner in the particular area involved. Soran v. Schoessler, supra. No injustice to stockmen can arise if they are required to comply with the normal practices of restraining their herds which prevail in the areas where they graze their animals.
While in this case the district court found that “the defendant’s cattle broke through fences on the property leased by the defendant and crossed the county road and went on to the hay fields of the plaintiff Maguire,” the court made no finding that the defendant “failed to act as a reasonable and prudent person with respect to the maintenance of this pasture fence and in allowing his livestock” to go upon the lands *842of the plaintiff. Soran v. Schoessler, 87 Idaho 425, 431, 394 P.2d 160. Without such a finding of negligence on the defendant’s part, no liability would accrue. The district court concluded that defendant’s cattle had crossed the county road to get to plaintiff Maguire’s property and that such crossing constituted an illegal trespass, relying on Soran v. Schoessler, supra. However, Soran does not establish highways as zones creating absolute liability to the owner of any cattle which crosses them. Soran merely established for highways what the Court should now confirm to be the rule with regard to all land which is neither open range nor a herd district — that the owner of cattle must act as a reasonable and prudent person with respect to the maintenance of his pasture fences and the controlling of his cattle.
The majority opinion also fails to discuss one of the principal issues in the case raised by the recent decision of this Court in Legg v. Barinaga, 92 Idaho 225, 440 P.2d 345 (1968). In the Legg case respondents were raising sheep on approximately 12,000 acres of owned and leased land while the appellants were raising cattle on approximately 1,200 acres of unfenced grazing land, together with certain fenced grazing land. The opinion of the Court noted that “respondents and appellants have twelve to thirteen miles of common boundary, none of which is fenced.” The opinion of the Court notes that the trial court found “appellants had overstocked their grazing land to the degree that their cattle continuously and repeatedly invaded respondent’s land in search of food and water,” and concluded that “a wilful trespass resulted when appellant’s cattle invaded the lands of respondents.” 92 Idaho at 227, 228, 440 P.2d at 346-348. This Court on appeal said that while “the mere turning loose of livestock upon one’s own premises or upon the public domain has generally been recognized as not per se constituting a wilful or intentional trespass, notwithstanding that one knew, or should have known, that the livestock might stray to another’s land,” nevertheless where the trespass results from the overstocking of one’s own grazing land causing the cattle to cross onto a neighbor’s land, liability results. The plaintiff Maguire made the same arguments in this case and introduced evidence to the effect that Porter, the lessor of the appellant Yanke, advised Yanke not to place more than one hundred head of cattle on the land; nevertheless Yanke placed one hundred thirty head of cattle with their calves, together with eight bulls on the leased land. The trial court concluded that “this discrepancy does not appear to be sufficient to warrant punitive damages.” The trial court’s observation was no doubt correct with regard to the award of punitive damages because in order to have sustained an award of punitive damages for overstocking it would have been necessary to show that the action of the wrongdoer was “wanton, malicious, or gross and outrageous,” or where the facts were such as to imply malice and oppression. Cox v. Stolworthy, 94 Idaho 683, 685, 496 P.2d 682 (1972). However, Legg v. Barinaga, supra, makes it clear that a mere knowing overstocking of land upon which cattle are put to pasture renders the owner of the cattle liable if they leave the land and trespass upon the lands of another. Not only does the Legg case seriously conflict with the expansive open range privilege which the majority opinion grants in this case to owners of livestock, but it seems to me it also requires that this matter be remanded to the trial court to specifically rule upon the plaintiff’s theory that the defendant Yanke overstocked his land, thus causing his cattle to break out and to trespass onto the plaintiff’s land. The trial court’s conclusion that the amount of overstocking, which he described as the discrepancy. between what the landlord advised Yanke to place on the land and the amount of cattle which Yanke in fact placed on the land, did “not appear to be sufficient to warrant punitive damages” would not preclude the trial court from finding, however, that the overstocking was sufficient to warrant tort liability under the Legg case.
Therefore, I would reverse the judgment of the district court and remand the case for a new trial to (1) determine whether the *843defendant Yanke was negligent, under the ruling of this Court in the Soran case, in the maintenance of his fences and managing his cattle prior to the trespass of his cattle into Maguire’s alfalfa field; and (2) to determine whether or not Yanke placed more cattle upon the land than it would carry resulting in the cattle breaking out and trespassing onto Maguire’s property, which would establish the liability of Yanke under the Legg case.
SHEPARD, C. J., concurs.. I.C. § 25-2402 defines open range as “all uninclosed lands outside cities and villages upon which by custom, license or otherwise, livestock, excepting swine, are grazed or permitted to roam."
. “25-2118. Animals on open range — No duty to keep from highway. — No person owning, or controlling the possession of, any domestic animal running on open range, shall have the duty *841to keep such animal off any highway on such range, and shall not be liable for damage to any vehicle or for injury to any person riding therein, caused by a collision between the vehicle and the animal. ‘Open range’ means all uninclosed lands outside of cities, villages and herd districts, upon which cattle by custom, license, lease, or permit, are grazed or permitted to roam.”