Prior opinion announced March 1, 1979, withdrawn. Decided March 3, 1979. Rehearing denied May 24, 1979. Certiorari granted August 20, 1979.
Landscape contractor appealed trial court granting of defendant's motions for judgment on the pleadings in his suit for damages incurred when a horse trespassed on plaintiff's land and destroyed part of his nursery stock.
1. ANIMALS — Trespass — "Fence Law" — Landowner has Duty — Maintain a Lawful Fence — Owner of Livestock — No Duty — Fence Them In. Under the "Colorado Fence Law," a person whose property has been damaged cannot recover for a trespass by livestock unless, at the time of the trespass, the complaining party has maintained in good repair a lawful fence to protect his property; the owner of the livestock is under no statutory duty to fence in his livestock.
2. Bailee of Animal — Same Position — Liability for Trespass — Animal Owner. The bailee of an animal stands in the same position in respect to liability for trespass as does the animal's owner, and thus, a bailee falls within the scope of protection accorded an owner by the Colorado Fence Law.
3. PRACTICE AND PROCEDURE — Answer Filed — Appropriate Motion — Disposition — Judgment on Pleadings — Affidavits Filed — Summary Judgment Entered. After an answer has been filed, the appropriate motion for disposition of the action is a motion for judgment on the pleadings, but if affidavits are filed, the judgment entered will be denominated a summary judgment.
4. Motion — Judgment on the Pleadings — Allegations — Opposing Party — Considered True — Inconsistent Theories — May Be Asserted — Affidavits May Be Filed — Uncontroverted Basis for Judgment — Asserted — Moving Party — Entitled to Judgment. In rulings on a motion for judgment on the pleadings, the allegations of the opposing party's pleadings are considered as true, and he may by liberal amendment give notice of inconsistent theories, and may by affidavit raise matters outside the pleadings; however, if the moving party asserts a basis for judgment which is not controverted by the opposing party, then the moving party is entitled to judgment.
5. APPEAL AND ERROR — Issue — Proper Maintenance of Fence — Not In Complaint — Not Presented — Trial Court — Barred — On Appeal. Where, in action to recover for property damage caused by horse trespassing on plaintiff's land, plaintiff's complaint contained no allegation that it had properly maintained a fence around the property, and even after defendants asserted the defense afforded by the Colorado Fence Law, plaintiff filed no reply, amendment, or affidavit alleging the proper maintenance of a fence until after the hearing on defendant's motion for disposition on the pleadings, that issue was not presented to the trial court and therefore cannot be raised on appeal.
Appeal from the District Court of Jefferson County, Honorable Anthony F. Vollack, Judge.
David L. Kofoed, P.C., Roger T. Castle, for plaintiff-appellant.
Michael J. Barbo, for defendant and third-party plaintiff-appellee.
Yegge, Hall Evans, Gail A. Laxalt, for defendant and third-party defendant-appellee.
Plaintiff sued for damages incurred when a horse, owned by defendant Jane Flens and boarded by defendant Louise Oldham, trespassed on plaintiff's land and destroyed part of plaintiff's nursery stock. The trial court granted defendants' motions for judgment on the pleadings, and plaintiff appeals. We affirm.
For purposes of this review we accept as true the allegations in plaintiff's complaint. Plaintiff, a landscape contractor, maintained a plant, shrub, and tree nursery on its property. The adjoining property was owned by defendant Oldham and was used by her as a horse pasture. The two properties were separated by a fence which Oldham negligently erected and maintained. On January 8, 1976, Flens's horse trespassed on plaintiff's property causing damage. The location of the property is not identified.
Plaintiff pled two claims for relief against each defendant based on theories of strict liability and negligence. The complaint alleged that defendant Flens was negligent for failing to contain and control the horse and for failing to prevent the horse from entering plaintiff's premises. Plaintiff charged that Oldham was under a duty to provide and maintain an appropriate fence to keep the horse from trespassing and that Oldham's failure to do so constituted negligence.
Under the common law of Colorado, and contrary to the English common law relied on by plaintiff, owners of livestock could range them at will, and owners of land could recover for damage to crops caused by the negligence of livestock owners only if the damaged land was enclosed by an adequate fence. Morris v. Fraker, 5 Colo. 425(1880).
 In any event, the "Colorado Fence Law," § 35-46-102, C.R.S. 1973, has superseded the common law. By the terms of that statute a person whose property has been damaged cannot recover for a trespass by livestock unless, at the time of the trespass, the complaining party has maintained in good repair a lawful fence to protect his property. The owner of the livestock is under no statutory duty to fence in his livestock. See Williamson v. Fleming, 65 Colo. 528, 178 P. 11 (1918). If no lawful fence exists, the owner of the livestock, here Flens, is not responsible for nonwillful trespass causing damage to vegetation. Bolten v. Gates, 105 Colo. 571, 100 P.2d 145 (1940).
 We also concur with the trial court's interpretation of the statute as it relates to defendant Oldham. Although the statute is couched in terms of owners of livestock, in a situation such as this one, the bailee of the animal, Oldham, stands in the same position in respect to liability for trespass as does the owner-bailor. The bailee has a "special property or possessory interest in the subject matter, which is equivalent to, or in the nature of, actual ownership except as against his bailor." 8 C.J.S. Bailments § 20b. Here, the bailee possessed sufficient attributes of ownership in the horse to bring that ownership within the scope, intent, and purpose of § 35-46-102, C.R.S. 1973. See also Bauldry v. Hall, 174 F.2d 379 (8th Cir. 1949). Therefore we agree with the trial court's conclusion that plaintiff could not prevail against either defendant on any one of the theories pled.
Plaintiff argues that he was entitled to contest defendants' allegation that he had not maintained a lawful fence in conformity with the statute, and therefore the trial court erred in entering judgment on the pleadings. We do not agree.
 Initially, plaintiff contends that the court's judgment should be considered as only a dismissal of the complaint for failure to state a claim for relief, whereas defendants urge the judgment is more in the nature of a summary judgment. C.R.C.P. 12(c), which governs in an action for judgment on the pleadings, states:
" After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." (emphasis added)
Thus, after an answer has been filed, as in this case, the appropriate motion is for a judgment on the pleadings. But if affidavits are filed, the judgment will be denominated a summary judgment. See Van Schaack v. Phipps, 38 Colo. App. 140, 558 P.2d 581 (1976).
 The pleadings of the parties frame the material issues of the action. In rulings on a motion for judgment on the pleadings, the allegations of the opposing party's (here plaintiff's) pleadings are considered as true. Strout Realty, Inc. v. Snead, 35 Colo. App. 204, 530 P.2d 969 (1969). If he wishes to plead inconsistent allegations, liberal amendment provisions give him ample opportunity to give notice of inconsistent theories prior to judgment. C.R.C.P. 15. If on a pre-trial motion he wishes to raise matters outside the pleadings he may do so by affidavit before the hearing. C.R.C.P. 12 and 56. But if the moving party asserts a basis for judgment which is not controverted by the opposing party, then the moving party is entitled to judgment.
 Here, plaintiff's complaint contained no allegation that it had properly maintained the fence. In fact, plaintiff's only pertinent allegation in this regard was that Oldham had negligently erected and maintained the fence. Even after defendants asserted the defense afforded by the fence law plaintiff filed no reply, amendment, or affidavit alleging that it had properly maintained the fence until after the hearing on the motion. See C.R.C.P. 12 and 15. Failure to present the issue to the trial court before judgment bars plaintiff now from raising it on appeal. Levine v. Empire Savings Loan Ass'n, 40 Colo. App. 285, 579 P.2d 642 (1977), aff'd, 197 Colo. 293, 592 P.2d 410 (No. C-1514 annc'd March 26, 1979); Fallis v. Zurich Insurance Co., 28 Colo. App. 235, 472 P.2d 174 (1970).
CHIEF JUDGE SILVERSTEIN concurs.
JUDGE BERMAN dissents.