IN THE SUPREME COURT, STATE OF WYOMING

2013 WY 151

OCTOBER TERM, A.D. 2013

December 11, 2013

JOHN C. McTIERNAN, BEAR CLAW 

CATTLE COMPANY, and GAIL 

SISTRUNK,

Appellants

(Defendants),

v.

JAMES L. JELLIS,

Appellee

(Plaintiff).

S-13-0109

Appeal from the District Court of Sheridan County

The Honorable Steven R. Cranfill, Judge

Representing Appellants:

Jeffrey J. Gonda and Amanda K. Roberts of Lonabaugh and Riggs, LLP, Sheridan, 

Wyoming; and Bruce S. Asay and Gregory B. Asay of Associated Legal Group, 

LLC, Cheyenne, Wyoming. Argument by Mr. Gonda.

Representing Appellee:

Kendal R. Hoopes of Yonkee & Toner, LLP, Sheridan, Wyoming.

Before KITE, C.J., and HILL, VOIGT, and BURKE, JJ, and PERRY, D.J.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. 

Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,

Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be 

made before final publication in the permanent volume.
1

VOIGT, Justice.

[¶1] James Jellis is a rancher in Sheridan County, Wyoming, and owns a beefalo cattle 

herd. Pursuant to an oral agreement with John McTiernan, Jellis kept his herd on 

McTiernan’s ranch near Dayton, Wyoming.1 A dispute arose between the parties 

regarding their oral agreement, culminating in to a lien being asserted by McTiernan and 

a legal action being filed by Jellis. The jury found, inter alia, McTiernan liable for 

conversion of Jellis’ beefalo herd, but also found McTiernan entitled to a lien against the 

same pursuant to Wyo. Stat. Ann. § 29-7-101 et seq. McTiernan filed a post-trial motion

based on several theories, including that a new trial was warranted because of the 

inconsistent verdict. We find the verdict is contrary to law and cannot be reconciled; 

therefore, we must conclude the district court abused its discretion in denying 

McTiernan’s motion for new trial. We remand for a new trial.

ISSUE

[¶2] The dispositive question in this matter is one that concerns whether a new trial is 

necessary because of an inconsistent verdict; for that reason, we restate the controlling 

issue as follows:2

[¶3] Is the jury’s verdict finding McTiernan liable for conversion of a beefalo herd,

while at the same time finding him entitled to a lien against the same pursuant to Wyo. 

Stat. Ann. § 29-7-101 et seq., contrary to law?

FACTS

[¶4] In January 2010, Jellis purchased a beefalo cattle herd from McTiernan who 

owned the Bear Claw Ranch near Dayton, Wyoming. The parties gathered the respective 

herd, Jellis took possession, and paid for the cattle in two installments. Thereafter, Jellis 

sought to graze his herd on McTiernan’s ranch and the parties discussed such a 

possibility.

[¶5] McTiernan agreed to let Jellis keep his newly acquired beefalo herd on a 

designated pasture of the Bear Claw Ranch for a certain fee. The parties, unfortunately, 

never reduced their agreement to writing and a subsequent dispute arose as to the terms. 

Jellis claims the agreement was for an annual grazing lease for the sum of $7.00 per acre 

 

1 Bear Claw Cattle Company and Gail Sistrunk are also named appellants. The appellants are collectively 

referred to as “McTiernan.”

2 McTiernan presents several alternative issues concerning alleged errors committed by the district court. 

Because we find the jury’s verdict is contrary to law and a new trial is required, we will not address the 

remaining issues. See Reidy v. Stratton Sheep Co., 2006 WY 69, ¶ 39, 135 P.3d 598, 612 (Wyo. 2006); 

Hack v. Pickrell, 515 P.2d 134, 135 (Wyo. 1973) (“Because it could be dispositive of this case, 

consideration will first be given to the asserted proposition that the verdict is contrary to law.”).
2

per year for rangeland and $17.50 per acre per year for dry land hay acreage. Under the

grazing lease, Jellis would remain in possession of his herd and be responsible for their 

feed and care.

[¶6] McTiernan on the other hand contends the agreement was one for an agistment, 

with terms consisting of pasturing and hay for $20.00 per animal unit monthly (“AUM”). 

“The particular kind of bailment under which a person, for a consideration, takes in cattle 

to graze and pasture on his or her land is technically termed an agistment . . . [and] 

involves an actual transfer of possession and control over the animals in question.” 

4 Am. Jur. 2d Animals § 57 (2007). However, a “landlord or lessor not having 

possession, control, or charge of the care or feeding of animals of the tenant or lessee 

generally is not entitled to claim a statutory [agister] lien.” 4 Am. Jur. 2d Animals § 58 

(2007).

[¶7] In June 2010, Jellis paid McTiernan an amount equal to the first half of the 2010 

lease (February–July 2010) per the terms understood by Jellis. At the end of 2010, Jellis 

approached McTiernan about continuing to keep the herd on the Bear Claw Ranch in 

2011, to which McTiernan agreed. In February 2011, Jellis then paid McTiernan for the 

second half of 2010.

[¶8] In the spring of 2011, the parties’ neighborly business relationship deteriorated. 

On April 26, 2011, McTiernan lodged an unfounded complaint with the Wyoming 

Livestock Board alleging that Jellis’ cattle “were not being fed.” The next day, April 27, 

McTiernan locked the gates that provided Jellis access to his cattle. Jellis discovered the 

gates were locked the same day, when one of his employees went to feed the herd. Jellis 

contacted McTiernan and asked that he have access to his cattle, but McTiernan refused. 

On May 2, 2011, McTiernan filed a lien statement pursuant to Wyo. Stat. Ann. § 29-7-

101 et seq. for payments allegedly owed under their oral agreement, totaling $23,875.00. 

Because McTiernan denied Jellis access to the herd beginning on April 27, 2011, 

McTiernan provided care and feed to the cattle from that time on until their court-ordered 

release back to Jellis five months later.

[¶9] Jellis filed a complaint and petition for release of his cattle on June 8, 2011, and 

expedited proceedings were held before the district court regarding release of the lien. 

Jellis asserted the lien was knowingly false and groundless, requiring release pursuant to 

Wyo. Stat. Ann. § 29-1-311(b).3 As a consequence, Jellis argued that McTiernan 

 

3 Wyo. Stat. Ann. §§ 29-1-301 through 311 were revised and renumbered during the 2010 legislative 

session, effective July 1, 2011. See 2010 Wyo. Sess. Laws, ch. 92, § 3. Wyo. Stat. Ann. § 29-7-103 

was also amended during this same legislative session to reflect the renumbering of Wyo. Stat. Ann. § 29-

1-301 through 311. Wyo. Sess. Laws, ch. 92, § 2. The underlying action was filed on June 8, 2011, prior 

to the repeal and renumbering. Accordingly, we will apply the relevant statutes as they existed prior to 

the 2011 amendments―Wyo. Stat. Ann. § 29-1-301 et seq. (LexisNexis 2009) and Wyo. Stat. Ann. § 29-

7-101 et seq. (LexisNexis 2009).
3

wrongfully converted the beefalo herd. McTiernan countered, positing he had a valid 

agister’s lien due to Jellis’ failure to pay amounts due under their oral agreement.

[¶10] The district court concluded it could not resolve the lien’s validity in the expedited 

proceeding and reserved its ruling for the lien foreclosure proceedings. However, the 

district court allowed the release of the cattle upon Jellis posting a security bond in the 

statutory amount required―$35,812.50―which was one and one-half times the amount 

of the asserted lien, $23,875.00. Jellis posted the requisite bond to satisfy the lien and a 

special master was appointed to sort and release the beefalo back to Jellis. Pursuant to 

the district court’s order and supervision by the special master, on September 19, 2011, 

Jellis retrieved his cattle from the Bear Claw Ranch.

[¶11] Thereafter, the case proceeded to a jury trial. After four days of hearing evidence 

and argument, the jury returned a special verdict finding McTiernan liable for conversion 

of Jellis’ cattle and awarded Jellis $18,700.00 in damages. However, the jury also found 

that McTiernan was entitled to the lien claimed for feed and pasturage from December 1, 

2010 through May 2, 2011, and awarded McTiernan $1,900.00 for such services.4

[¶12] Before the jury was released, McTiernan objected to the verdict claiming it was 

inconsistent because he could not be liable for conversion of Jellis’ beefalo herd if he was 

entitled to a lien against the same. The district court requested that the motion be made in 

writing to be heard at a later date and excused the jury. Thereafter, McTiernan filed posttrial motions for judgment as a matter of law, or alternatively, for a new trial―pursuant 

to W.R.C.P. 50 and 59―based on several theories, including a new trial was warranted 

because of the inconsistent verdict. The district court denied McTiernan’s post-trial 

motions and entered a final judgment incorporating the jury’s verdict. This appeal was 

timely perfected.

STANDARD OF REVIEW

[¶13] District courts “have broad discretion when ruling on a motion for new trial, and 

they will not be reversed absent an abuse of that discretion.” Pauley v. Newman, 2004 

WY 76, ¶ 17, 92 P.3d 819, 825 (Wyo. 2004) (quoting Garnick v. Teton Cnty. Sch. Dist. 

No. 1, 2002 WY 18, ¶ 6, 39 P.3d 1034, 1038 (Wyo. 2002)). This case, however, also

requires interpretation of the relevant lien statute for personal property. Statutory 

interpretation is a question of law, which we review de novo. Hede v. Gilstrap, 2005 WY 

24, ¶ 6, 107 P.3d 158, 162 (Wyo. 2005).

 

4 The jury also determined McTiernan engaged in conduct such that he should be required to pay Jellis 

punitive damages, awarding Jellis $50,000.00.
4

DISCUSSION

[¶14] To resolve this matter, we must first determine whether the existence of a lien 

under Wyo. Stat. Ann. § 29-7-101 et seq. depends on the lien claimant’s possession of the 

tangible personal property. In doing so, we strive to give effect to the legislature’s intent 

and begin by looking at the ordinary and obvious meaning of the words employed 

according to their arrangement and connection. We also recognize “[l]ien statutes create 

remedies in derogation of common law and must be strictly construed” and “[w]e will not 

extend the scope of statutory lien laws.” Coones v. FDIC, 894 P.2d 613, 616 (Wyo. 

1995) (citations and some quotations omitted).

[¶15] Title 29 of the Wyoming Statutes establishes lien rights to persons performing 

work or providing services for certain kinds of property. Importantly, the requirements 

vary depending on the type of property at issue. For instance, Chapter 2 governs liens for 

work performed on real property. Chapter 3 controls liens concerning mineral interests. 

Chapter 4 deals with ditches, canals, and reservoirs. Chapter 5 is limited to owners and 

operators of harvesting machines. And Chapter 7 governs liens against personal 

property. Our discussion begins by examining the pertinent lien statute governing

personal property, which grants lien rights to persons who perform work on tangible 

personal property or persons caring for or keeping animals. Because the language and 

context of the relevant statute is critical to our decision, we quote the bulk of the act, 

despite its length:

§ 29-7-101. Persons entitled to lien; exception.

(a) Any person is entitled to a lien on any goods, chattels 

or animals for his reasonable charges for work or services 

performed or feed provided when he:

(i) Makes, alters, repairs, bestows work upon, 

transports, stores or keeps the same; or

(ii) Feeds, herds, pastures or cares for any domestic 

or wild animal lawfully held in captivity. Any person 

creating a lien under this paragraph shall file the lien in the 

office of the secretary of state.

. . . .

§ 29-7-102. Right of possession by lien claimant; 

termination thereof; removal of property without 

lienholder’s consent; penalty therfor; filing of lien 

statement in lieu of possession.
5

(a) A lien claimant may retain possession of the property 

to which the lien pertains until paid for the labor, services, 

materials and feed which entitle the lien claimant to assert the 

lien. However, the right of possession terminates six (6) 

months after the date upon which the charges become due and 

payable unless the lien claimant has commenced proceedings 

to foreclose the lien as provided by W.S. 29-7-101 through 

29-7-106.

(b) If any person causes to be removed from the 

possession of a lien claimant any property or part thereof 

which is subject to the lien created by W.S. 29-7-101 through 

29-7-106 from the place where the property was located when 

the lien is perfected, without the written consent of the owner 

and the holder of the lien or his agent, either originally or by 

transfer, the person so removing the property affected by the 

lien is guilty of a misdemeanor. On conviction he may be 

punished by a fine of not more than seven hundred fifty 

dollars ($750.00).

(c) If a lien claimant desires to continue a lien without 

retaining possession, he may before voluntarily releasing 

possession file a lien statement in the office of the county 

clerk of the county where the property is located, or in the 

case of a feeder’s lien under paragraph (a)(ii) of this section, 

in the office of the secretary of state.

(d) If possession is terminated without the lien claimant’s 

consent, he may perfect the lien by filing a lien statement on 

or before thirty (30) days after possession is terminated.

§ 29-7-103. Lien statement; additional contents; county 

clerk to note lien on certificate of title.

(a) A lien statement under W.S. 29-7-101 through 29-7-

106 shall provide in addition to the requirements of W.S. 29-

1-301(b) [now W.S. 29-1-312(b)] whether the lien claimant 

was in possession of the property at the time the lien 

statement was filed or the owner consented to the filing of the 

lien. Notwithstanding W.S. 29-1-301(a) [now W.S. 29-1-

312(a)], a feeder’s lien created pursuant to W.S. 29-7-
6

101(a)(ii) shall be filed in the office of the secretary of state 

together with any applicable filing fees.

. . . .

§ 29-7-104. Termination of lien; effect thereof on 

claimant’s right of possession.

(a) A lien under W.S. 29-7-101 through 29-7-106 

terminates:

(i) Upon a lienor’s voluntary surrender of possession 

of the property, unless a lien statement has previously been 

filed as provided in W.S. 29-7-103;

(ii) One hundred eighty (180) days after the date

upon which the work, services, materials and feed giving rise 

to the lien were performed or furnished unless a lien 

statement has previously been filed as provided by W.S. 29-7-

103; and

(iii) One hundred eighty (180) days after a lien 

statement is filed as provided in W.S. 29-7-103, unless action 

to enforce and foreclose the lien has commenced.

(b) Upon termination of a lien, the lien claimant has no 

further right to possession of the property and no further 

interest therein.

§ 29-7-105. Repossession; enforcement of lien by sale; 

notice thereof to known claimants; satisfaction by any 

claimant; title of good faith purchaser; disposition of 

proceeds; additional creditors’ rights; liability for 

noncompliance with section; “commercially reasonable”.

(a) Subject to the termination of a lien as provided in W.S. 

29-7-104, a lienor who has surrendered possession 

involuntarily has the right to repossess the property subject to 

the lien. In repossessing a lienor may proceed without 

judicial process if this can be done without breach of the 

peace. A lienor may also replevy the property or use any 

other judicial action available.
7

. . . .

Wyo. Stat. Ann. §§ 29-7-101 through 29-7-105 (LexisNexis 2009).

[¶16] While the initial section, § 29-7-101, does not include the term possession, such an 

omission does not destroy the obvious by not mentioning it futilely. The plain and 

ordinary language contained in the remaining sections answers our question in the 

affirmative. Reading the provisions of Wyoming’s lien statute for personal property in 

pari materia, a reasonable construction convinces us that a lien claimant must have 

possession of the article in order to establish and maintain the lien.5 Reasons abound to 

support our conclusion. For instance, the term “retain” set forth in § 29-7-102(a) is 

defined as “to keep in possession.” Merriam-Webster’s Collegiate Dictionary 999 (10th 

ed. 1999). Consequently, one must have possession to retain the same. Furthermore, 

§ 29-7-103(a)’s requirement that the claimant state he is in possession at the time of filing 

or that the owner consented, provides prima facie proof the claimant is entitled to the 

lien. These alternative requirements can be traced to the common law. “For a commonlaw lien to arise, a claimant must have exclusive possession of the property, since the lien 

is based directly on the idea of possession.” 51 Am. Jur. 2d Liens § 25 (2011); see also

51 Am. Jur. 2d Liens § 22 (2011). “In the absence of a lien given by law, neither party 

can create one without the consent or agreement of the other, nor may a lien be created on 

property without the knowledge or consent of its owner.” 51 Am. Jur. 2d Liens § 12 

(2011).

[¶17] Put simply, this statute codifies the common law principle that a person has a 

possessory interest in the tangible personal property left in his or her care by the owner or 

legal possessor and in which the person has invested value.6 Our conclusion in the 

 

5 We note that several specific exceptions exist to the requirement of possession: (1) the owner voluntarily 

consents to the lien (Wyo. Stat. Ann. § 29-7-103(a)); (2) the lien claimant files a lien statement with the 

secretary of state before voluntarily releasing possession (Wyo. Stat. Ann. § 29-7-102(c)); or (3) 

possession was terminated without the lien claimant’s consent and he perfects the lien by filing a lien 

statement (Wyo. Stat. Ann. § 29-7-102(d)).

6 American Jurisprudence explains:

The right to a common-law lien is based directly on the idea of 

possession, and it is indispensable that the one claiming it have 

independent and exclusive possession of the property.

Such a lien arises only when possession is obtained, and exists only 

so long as possession is retained; possession is essential to both the 

creation and the preservation of the lien.

One in possession of property under a lien is the owner of the 

property as against all the world, and even against the actual owner, until 

the claim is paid, and no one, not even the actual owner, may disturb the 

lienor’s possession without previous payment of the claim.

51 Am. Jur. 2d Liens § 29 (2011).
8

instant case is not original, however. Over a hundred years ago, in Turner v. Horton, this 

Court explained:

A lien in its proper legal sense is said to import that one is in 

possession of the property of another, and that he detains it as 

security for some demand which he has in respect of it, and 

hence it implies possession by the creditor, title in the debtor, 

and a debt arising out of the specific property. 1 Jones on 

Liens (2d Ed.) § 20. At common law a person who had 

bestowed labor upon an article of personal property, or done 

some other act in reference to it by which its value was 

enhanced, had the right to detain the same until reimbursed 

for his expenditure and labor. That is known as the commonlaw lien. Its continuance depended upon possession, and, 

whenever the possession was voluntarily surrendered, the lien 

was lost. Oakes v. Moore, 24 Me. 214, 41 Am. Dec. 379

[(1844)]; Arians v. Brickley, 65 Wis. 26, 26 N. W. 188, 56 

Am. Rep. 611 [(1885)].

Our statutes have extended the lien to persons not 

entitled to it at common law, such as agisters and livery stable 

keepers, but it is generally held that statutes of that character 

are to be construed in accordance with the principles 

controlling the lien at common law. 1 Jones on Liens (2d 

Ed.) § 749. Hence, unless the statute either expressly or by 

clear implication provides to the contrary, possession is 

essential to the existence and preservation of the lien. It was 

so held by this court with reference to the lien of an agister 

under the statute, and it was said that, “the lien being founded 

upon possession, it must ordinarily cease when the possession 

ceases. If one voluntarily parts with the possession of the 

property, the lien is thereby lost.” Fein v. Wyo. Loan & Trust 

Co., 3 Wyo. 331[, 22 P. 1150 (1890)]. The necessary effect 

of that decision is that the nature of the remedy provided for 

enforcing the lien is not such as to eliminate the element of 

possession.

18 Wyo. 281, 293, 106 P. 688, 690-91 (1910). Seventy years later in Rocky Mountain 

Turbines, Inc. v. 660 Syndicate, Inc., we again examined Wyoming’s personal property 

lien statute and reaffirmed that possession is a requisite essential. 

The foregoing language [of Wyo. Stat. Ann. § 29-7-

101 et seq.] is plain in that the lien established thereby is a 
9

possessory lien which terminates upon the “voluntary 

surrender of possession” unless “a lien statement has 

previously been filed.” The common-law lien was similar:

“The right to a common-law lien is based directly on 

the idea of possession, and it is indispensable that the 

one claiming it have an independent and exclusive 

possession of the property. Such a lien arises only 

when possession is obtained, and exists only so long as 

it is retained. * * *” (Emphasis supplied.) 51 

Am.Jur.2d Liens § 21, p. 159.

“As a general rule a common-law or other lien 

dependent on possession is waived or lost by the 

lienholder voluntarily and unconditionally parting with 

possession or control of the property to which it 

attaches; and such lien cannot be restored thereafter 

by resumption of possession. * * *” (Emphasis 

supplied). 53 C.J.S. Liens § 17d(3), p. 864.

We have so held in construing and applying statutes 

similar to § 29-7-101, W.S.1977, et seq. and predecessor 

thereto. See for example, Fein v. Wyoming Loan & Trust 

Co., 3 Wyo. 331, 22 P. 1150 (1890); and Nebraska 

Machinery Company v. Schoenheit Trucking Company, 76 

Wyo. 140, 301 P.2d 555 (1956).

The statutes are too plain and unambiguous to require 

further discussion. Rocky Mountain’s lien terminated when it 

relinquished possession of the aircraft without having 

previously filed a lien statement. A subsequent obtaining of 

possession of the aircraft does not restore the terminated lien.

623 P.2d 758, 761 (Wyo. 1981).

[¶18] Most recently, in Smith v. Lewis Auto Body, we had occasion once again to 

examine this statute when faced with the issue of whether a lien claimant was entitled to 

fees for storage of a vehicle after a demand for release was lodged. 2011 WY 109, 255 

P.3d 935 (Wyo. 2011). We concluded that a lien claimant is not so entitled, explaining:

As indicated above, the argument that a repair shop 

has “no choice” but to retain possession of a vehicle as 

security was rejected in Country Mutual [Insurance Company 
10

v. Styck’s Body Shop, Inc.] because, as the court noted, the 

body shop could have released the vehicles in its possession 

and sued for damages. [396 Ill.App.3d 241, 249, 335 Ill. Dec. 

382, 918 N.E.2d 1195 (Ill.App.Ct. 2009)]. It was not 

necessary for Lewis to retain possession of the vehicle in 

order to file an action for damages. Lewis also was entitled to 

assert a lien regardless of whether it had possession of the 

vehicle. See Wyo. Stat. Ann. §§ 29-7-101 through 29-7-106. 

Under Wyo. Stat. Ann. § 29-7-102(a), Lewis would have 

been entitled to retain possession pursuant to a valid lien until 

it received payment for its services. We hold, however, that 

Lewis was not also entitled to accumulate storage charges 

during this period.

Id. at ¶ 19, at 940. While the statement that “Lewis also was entitled to assert a lien 

regardless of whether it had possession of the vehicle” may be misconstrued by some to 

mean initial possession is not necessary, our interpretation is one that is narrowly tailored 

to the context of that case; that is, a party does not need to retain possession after a lien 

statement is filed in accordance with Wyo. Stat. Ann. § 29-7-102(c).

[¶19] Consistent with our long-standing precedent, we again conclude a lien pursuant to 

Wyo. Stat. Ann. § 29-7-101 et seq. is possessory7and a person must have possession of 

the article to assert such a statutory lien. See Coones, 894 P.2d at 616-17; Rocky 

Mountain Turbines, 623 P.2d at 760; Nebraska Mach. Co. v. Schoenheit Trucking Co., 76 

Wyo. 140, 149, 301 P.2d 555, 559 (Wyo. 1956); Tillotson v. Delfelder, 40 Wyo. 283,

289, 276 P. 935, 937 (Wyo. 1929); Washakie Livestock Loan Co. v. Meigh, 50 Wyo. 480, 

492-99, 62 P.2d 523, 527-530 (Wyo. 1936); Thomas v. Mann, 22 Wyo. 99, 108-09, 135 

P. 1088, 1090 (Wyo. 1913); Turner, 18 Wyo. 281, 293-94, 106 P. at 690-91; Fein v. Wyo. 

Loan & Trust, 3 Wyo. 331, 332, 22 P. 1150, 1151 (Wyo. 1890). We also solicitously 

have studied the evolution of Wyoming’s lien statute for personal property, which 

confirms possession has been, and continues to be, required. See Wyo. Comp. Stat. Ann. 

§§ 3753 and 3754 (Mullen 1910); Wyo. Comp. Stat. Ann. §§ 55-101 through 55-125

(Bobbs-Merrill 1945); Wyo. Stat. Ann. § 29-7-101 (Michie 1977); 1981 Wyo. Spec. Sess. 

Laws, ch. 17 § 29-7-101; 2004 Wyo. Sess. Laws, ch. 24, § 1.

[¶20] To find otherwise is contra legem and would render several provisions of the 

statute meaningless and produce absurd results. We have said:

Statutes must be construed so that no portion is 

rendered meaningless. Interpretation should not produce an 

 

7 A possessory lien is a “lien allowing the creditor to keep possession of the encumbered property until 

the debt is satisfied.” Black’s Law Dictionary 1008 (9th ed. 2009).
11

absurd result. We are guided by the full text of the statute, 

paying attention to its internal structure and the functional 

relation between the parts and the whole. Each word of a 

statute is to be afforded meaning, with none rendered 

superfluous. Further, the meaning afforded to a word should 

be that word’s standard popular meaning unless another

meaning is clearly intended. If the meaning of a word is 

unclear, it should be afforded the meaning that best 

accomplishes the statute’s purpose.

See Hede, 2005 WY 24, ¶ 6, 107 P.3d at 163 (citations and quotations omitted). Perhaps 

an example would be helpful to illustrate. If possession were not required, a person who 

changes a tire on the side of a road, or merely leases his pasture for grazing, can simply 

file a lien statement. In these circumstances, possession has never been acquired by the 

claimant and there is no risk of losing entitlement of the lien due to subsequent 

possession being lost. But, if the person tows the car back to his shop and changes the 

tire there, or the person is an agister8, the person has possession which cannot be given up 

until a lien statement is filed, otherwise he will lose his lien pursuant to the express 

language of Wyo. Stat. Ann. §§ 29-7-102(c) and 29-7-104(a)(i)). We believe the 

legislature did not intend to create such a circumstance. We note that one not in 

possession―and thus not entitled to a personal property lien under Wyo. Stat. Ann. § 29-

7-101 et seq.―is not left without a remedy. He can still bring an action for damages. 

See Smith, 2011 WY 109, ¶ 19, 255 P.3d at 940.

[¶21] Finding the existence and continuance of a lien pursuant to Wyo. Stat. Ann. § 29-

7-101 et seq. is dependent upon possession, we turn to whether the jury’s verdict finding 

 

8 Corpus Juris Secundum explains:

To agist is to pasture animals for hire. Agistment is a bailment in which 

the bailee takes in and feeds or pastures animals upon the land for 

consideration, either at a named price or for the reasonable value of the 

services rendered. In the context of such bailment, the taking of such 

animals is synonymous with the delivery and acceptance of property by 

the alleged bailee. Generally, agistment is a contract whereby a person, 

called an agistor, has possession and control of the subject animals, as 

well as, where applicable, possession of the land. For an agistment 

bailment to be established, there must be a showing of some duty of care 

of the animals bargained for and accepted by the landowner. Not every 

agreement for the use of a pasture carries with it the duty of care on the 

part of the landowner. An agistment is distinguishable from a lease.

3B C.J.S. Animals § 73 (2013).
12

McTiernan liable for conversion while at the same time entitled to a lien under Wyo. Stat 

Ann. § 29-7-101 et seq., can be reconciled as a matter of law.

“It is the duty of the court to attempt to harmonize the 

answers, if it is possible under a fair reading of them. ‘Where 

there is a view of the case that makes the jury’s answers to 

special interrogatories consistent, they must be resolved that 

way.’ In determining whether there is inconsistency in the 

jury’s findings, the findings are to be construed in the light of 

the surrounding circumstances and in connection with the 

pleadings, instructions, and issues submitted.” [Citations 

omitted.]

Rivermeadows, Inc. v. Zwaanshoek Holding & Financiering, B.V., 761 P.2d 662, 665 

(Wyo. 1988) (quoting Wright & Miller, Federal Practice and Procedure: Civil § 2510, pp. 

515–17 (1971)). With this guidance in mind, it is apparent we cannot harmonize the 

jury’s verdict.

[¶22] The jury was presented with a special verdict form, within which it found:

Plaintiff’s Claims

Conversion 

1. Do you find that the Plaintiff, Mr. Jellis, is entitled 

to a judgment against Defendants John C. McTiernan, Bear 

Claw Cattle Company, and Gail Sistrunk with respect to his 

conversion claim?

Yes X No

Defendants’ Claims

Foreclosure of Lien

1. Do you find that Defendants John C. McTiernan 

and Bear Claw Cattle Company were entitled to the lien 

claimed for the feed and pasturage of Jellis cattle during the 

time period beginning December 1, 2010 through May 2, 

2011?

Yes X No
13

As we explained, see supra ¶ 16, only one who is in lawful initial possession of the 

subject personal property is entitled to a lien pursuant to Wyo. Stat. Ann. § 29-7-101 et 

seq. The question then becomes whether one who is rightfully in possession of personal 

property and retains the same pursuant to his or her lien rights can be liable for 

conversion at the same time. The answer is no.

[¶23] “Conversion occurs when a person treats another’s property as his own, denying 

the true owner the benefits and rights of ownership.” Johnson v. Reiger, 2004 WY 83, 

¶ 27, 93 P.3d 992, 999 (Wyo. 2004). To establish a claim for conversion, the following 

elements must be met: (1) plaintiff had legal title to the converted property; (2) plaintiff 

either had possession of the property or the right to possess it at the time of the 

conversion; (3) the defendant exercised dominion over the property in a manner which 

denied the plaintiff his rights to use and enjoy the property; (4) in those cases where the 

defendant lawfully, or at least without fault, obtained possession of the property, the 

plaintiff made some demand for the property’s return which the defendant refused; and 

(5) the plaintiff has suffered damage by the loss of the property. See id. at ¶ 27, at 999-

1000. In the instant case, the jury was instructed accordingly.

[¶24] Because the jury found McTiernan entitled to a lien pursuant to Wyo. Stat. Ann. 

§ 29-7-101 et seq. against Jellis’ beefalo herd, as a matter of law McTiernan could not 

have converted the same. Wyoming’s lien statute authorized McTiernan to retain the 

subject cattle, thus, he could not have wrongfully exercised dominion over the herd. 

Conversely, if McTiernan was liable for conversion, then he could not have been found to 

have lawful initial possession of the cattle, which necessarily follows he could not retain 

the same and was not entitled to a lien under Wyo. Stat. Ann. § 29-7-101 et seq. See e.g.,

Fisk Rubber Co. of New York v. Lawer Auto Supply, 35 Wyo. 283, 298, 248 P. 825, 830 

(1926). The jury’s verdict is inconsistent and cannot be reconciled as a matter of law.

[¶25] We note Jellis did not cross-appeal and challenge the validity of the subject lien. 

Consequently, we will not consider whether McTiernan actually had initial lawful 

possession of the cattle and, therefore, entitled to a lien pursuant to Wyo. Stat. Ann. § 29-

7-101. This determination will be left to the jury on remand. Indeed, if the jury finds 

McTiernan was in possession of the cattle pursuant to what he claims was an agistment 

agreement—thereby entitling him to a lien under Wyo. Stat. Ann. § 29-7-

101―McTiernan is not liable for conversion. Conversely, if the jury finds that 

McTiernan was not in possession of the cattle―rather, the oral agreement was for a 

grazing lease―then McTiernan is not entitled to a lien and liable for conversion. See 

Panhandle Feeders, Inc. v. C & D Enterprises, LLC, 1 P.3d 647, 649 (Wyo. 2000); 

4 Am. Jur. 2d Animals §§ 57-58 (2007). Additionally, it may be that the jury finds 

McTiernan liable for conversion and not entitled to a lien, but that McTiernan is owed 

money under a grazing lease from December 1, 2010 through May 2, 2011. Because of 

this possibility, a provision in the special verdict form ought to be added accordingly.
14

CONCLUSION

[¶26] A lien under Chapter 7 of Title 29 is possessory and its existence dependent upon 

possession of the subject personal property. As a result, the jury’s finding that 

McTiernan was liable for conversion is inconsistent as a matter of law with its finding 

that McTiernan was also entitled to a personal property lien pursuant to Wyo. Stat. Ann. 

§ 29-7-101 et seq. We remand to the district court for a new trial.