A. Criminal trespass consists of knowingly entering or remaining upon posted private property without possessing written permission from the owner or person in control of the land. The provisions of this subsection do not apply if:

(1) the owner or person in control of the land has entered into an agreement with the department of game and fish granting access to the land to the general public for the purpose of taking any game animals, birds or fish by hunting or fishing; or

(2) a person is in possession of a landowner license given to him by the owner or person in control of the land that grants access to that particular private land for the purpose of taking any game animals, birds or fish by hunting or fishing.

B. Criminal trespass also consists of knowingly entering or remaining upon the unposted lands of another knowing that such consent to enter or remain is denied or withdrawn by the owner or occupant thereof. Notice of no consent to enter shall be deemed sufficient notice to the public and evidence to the courts, by the posting of the property at all vehicular access entry ways.

C. Criminal trespass also consists of knowingly entering or remaining upon lands owned, operated or controlled by the state or any of its political subdivisions knowing that consent to enter or remain is denied or withdrawn by the custodian thereof.

D. Any person who enters upon the lands of another without prior permission and injures, damages or destroys any part of the realty or its improvements, including buildings, structures, trees, shrubs or other natural features, is guilty of a misdemeanor, and he shall be liable to the owner, lessee or person in lawful possession for civil damages in an amount equal to double the value of the damage to the property injured or destroyed.

E. Whoever commits criminal trespass is guilty of a misdemeanor. Additionally, any person who violates the provisions of Subsection A, B or C of this section, when in connection with hunting, fishing or trapping activity, shall have his hunting or fishing license revoked by the state game commission for a period of not less than three years, pursuant to the provisions of Section 17-3-34 NMSA 1978.

F. Whoever knowingly removes, tampers with or destroys any "no trespass" sign is guilty of a petty misdemeanor; except when the damage to the sign amounts to more than one thousand dollars ($1,000), he or she is guilty of a misdemeanor and shall be subject to imprisonment in the county jail for a definite term less than one year or a fine not more than one thousand dollars ($1,000) or to both such imprisonment and fine in the discretion of the judge.

G. This section, as amended, shall be published in all issues of "Big Game Hunt Proclamation" as published by the department of game and fish.

History: 1953 Comp., § 40A-14-1, enacted by Laws 1963, ch. 303, § 14-1; 1975, ch. 52, § 1; 1979, ch. 186, § 1; 1981, ch. 34, § 1; 1983, ch. 27, § 2; 1991, ch. 58, § 1; 1995, ch. 164, § 1.

Cross references. — For authority of conservation officers to enforce these provisions under emergency circumstances, see 17-2-19 NMSA 1978.

For trespass on state lands, see 19-6-3 NMSA 1978 et seq.

For criminal damage to property, see 30-15-1 NMSA 1978.

For detention or arrest of trespassers upon restricted areas, see 30-21-3 NMSA 1978.

For removal or destruction of plants near highway, see 76-8-1 NMSA 1978 et seq.

For livestock trespass, see 77-14-3 NMSA 1978 et seq.

The 1995 amendment, effective June 1, 1995, added the second sentence in Subsection B and added Subsections F and G.

The 1991 amendment, effective July 1, 1991, added Subsection A; redesignated the subsequent subsections accordingly; in Subsection B inserted "also" and "unposted"; in Subsection D added the language beginning with "and he shall be liable"; and added the second sentence in Subsection E.

The 1983 amendment deleted "petty" preceding "misdemeanor" in Subsections C and D.

Crime defined. — Trespassing, both at common law and by statute, is the entry onto another's property without permission of the owner. State v. Tower, 2002-NMCA-109, 133 N.M. 32, 59 P.3d 1264.

Unauthorized entry. — Where an unauthorized entry merely consists of climbing over a fence, businesses and other open property are protected under the criminal trespass statute. State v. Foulenfont, 1995-NMCA-028, 119 N.M. 788, 895 P.2d 1329.

Elements of offense. — For a conviction, Section 30-14-1D NMSA 1978 requires that the defendant both "entered" property "without permission" and "damaged" an improvement on the property. State v. Contreras, 2007-NMCA-119, 142 N.M. 518, 167 P.3d 966.

Instruction on lesser included offense. — When criminal trespass is factually based solely on unlawful entry, not on unlawfully remaining without consent, then criminal trespass is necessarily included within the offense of aggravated burglary of a dwelling house and a defendant is entitled to an instruction on the lesser included offense. State v. Romero, 1998-NMCA-057, 125 N.M. 161, 958 P.2d 119,

Knowledge requirement. — While criminal trespass can, under some circumstances, require knowledge that the trespasser does not have permission to be on the land, New Mexico law also defines other trespass-type offenses that require knowledge only of the trespasser's actions, not of their illegality. Tanberg v. Shlotis, 401 F.3d 1151 (10th Cir. 2005).

Private land not properly posted. — If private land is not properly posted under the statutory requirements, then a person can only commit criminal trespass by entering or remaining upon the property knowing that such consent to enter or remain is denied or withdrawn by the owner or occupant thereof. State v. Merhege, 2017-NMSC-016, rev'g 2016-NMCA-059, 376 P.3d 867.

Proof of knowledge element of criminal trespass. — Where defendant was charged with criminal trespass for running through the front yard of a private residence that was enclosed by a three foot high wall and for attempting to jump over an adjoining fence into the back yard of the residence while fleeing from a police officer at 3:40 a.m., there was sufficient circumstantial evidence for the jury to find that defendant knew that he did not have consent to enter the property based on the wall surrounding the property's front yard, the purpose of defendant's entry, and the time of his entry on the property. State v. Merhege, 2017-NMSC-016, rev'g 2016-NMCA-059, 376 P.3d 867.

Knowledge of lack of consent to enter land required. — In defendant's trial for criminal trespass, there was insufficient evidence to support defendant's conviction where the private land did not have a "no trespassing" sign, and the landowner did not place defendant on notice that he was not permitted on his property by denying or withdrawing consent to enter his land. State v. Merhege, 2016-NMCA-059, cert. granted.

This section requires general criminal intent. State v. McCormack, 1984-NMCA-042, 101 N.M. 349, 682 P.2d 742.

When one commits burglary of dwelling house one commits criminal trespass based on that entry. State v. Ruiz, 1980-NMCA-123, 94 N.M. 771, 617 P.2d 160.

Unlawfully entering lands of another. — The only "act" involved in criminal trespass, as a lesser offense included within burglary of a dwelling house, is entry upon the lands of another, which requires a "malicious intent." State v. Ruiz, 1980-NMCA-123, 94 N.M. 771, 617 P.2d 160 (decided under prior law).

Unlawful entry is entry not authorized by law, without excuse or justification. State v. Ruiz, 1980-NMCA-123, 94 N.M. 771, 617 P.2d 160.

"Lands," in Subsection B, includes buildings and fixtures and is synonymous with real property. State v. Ruiz, 1980-NMCA-123, 94 N.M. 771, 617 P.2d 160.

Subsection B applies to federal government land. — Where land is owned and operated by the federal government as a proprietor, the state has sovereignty over the land, provided it does not interfere with the use of the federal government, and Subsection A applies. State v. McCormack, 1984-NMSC-006, 100 N.M. 657, 674 P.2d 1117.

Damage to property not required to show malicious intent. — While damage to property would be evidence of malicious intent, such is not required inasmuch as malicious intent may be established by evidence of an intent to vex or annoy or do a wrongful act. State v. Ruiz, 1980-NMCA-123, 94 N.M. 771, 617 P.2d 160 (decided under prior law).

Trespass in watermelon patch. — Trespass of group of boys on land occupied by another and stealing of watermelons thereon, with minor injury to fence, did not constitute a violation of former 40-47-12, 1953 Comp., relating to unlawful injury of fence and crops, a felony, but rather, of former 40-47-5, 1953 Comp., relating to trespassing on improved land with intent to cut, take, etc., trees or crops growing there, a misdemeanor. Brown v. Martinez, 1961-NMSC-040, 68 N.M. 271, 361 P.2d 152.

Injuring house. — An opening of four inches was sufficient to complete the offense of injuring house for purpose of entering and molesting occupant under Laws 1875-1876, ch. 9, § 2, former 40-47-19, 1953 Comp. Territory v. Gallegos, 1913-NMSC-002, 17 N.M. 409, 130 P. 245 (decided under prior law).

Civil liability to injured trespasser. — As a matter of law the use of a gun by owner while stopping trespass or theft of watermelons by group of boys was not permissible, and when owner fired gun he became liable to injured boy. Brown v. Martinez, 1961-NMSC-040, 68 N.M. 271, 361 P.2d 152 (decided under prior law).

Application to journalist not abridgement of rights. — Application of this section to a journalist who crossed a barricade at a federal government nuclear waste disposal plant did not abridge the first amendment right to peaceably assemble or the right of the press to gather and report news. State v. McCormack, 1984-NMCA-042, 101 N.M. 349, 682 P.2d 742.

Criminal trespass not a lesser included offense of breaking and entering. — Trial court did not err in refusing to give lesser included-offense instructions on criminal trespass and breaking and entering. State v. Andrade, 1998-NMCA-031, 124 N.M. 690, 954 P.2d 755, cert. denied, 124 N.M. 589, 953 P.2d 1087.

Evidence sufficient. — Evidence that defendant repeatedly trespassed onto victim's property and that defendant was the party who looked into victim's windows and followed her was sufficient to support convictions for stalking, harassment and criminal trespass. State v. Duran, 1998-NMCA-153, 126 N.M. 60, 966 P.2d 768, cert. denied, 126 N.M. 533, 972 P.2d 352, overruled on other grounds by State v. Laguna, 1999-NMCA-152, 128 N.M. 345, 992 P.2d 896, cert. denied, 128 N.M. 149, 990 P.2d 823.

Access to public waters. — A private landowner cannot prevent persons from fishing in a public stream that flows across the landowner's property, provided the public stream is accessible without trespass across privately owned adjacent lands. 2014 Op. Att'y Gen. 14-04.

Law reviews. — For annual survey of New Mexico criminal law, see 16 N.M.L. Rev. 9 (1986).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 75 Am. Jur. 2d Trespass §§ 162, 163, 167, 181, 182, 185.

Right to enter land to remove timber cut before revocation of license, 26 A.L.R.2d 1194.

Students: participation of student in demonstration on or near campus as warranting imposition of criminal liability for breach of peace, disorderly conduct, trespass, unlawful assembly or similar offense, 32 A.L.R.3d 551.

Liability of private citizen, calling on police for assistance after disturbance or trespass, for false arrest by officer, 98 A.L.R.3d 542.

Trespass: state prosecution for unauthorized entry or occupation, for public demonstration purposes, of business, industrial, or utility premises, 41 A.L.R.4th 773.

Entry on private lands in pursuit of wounded game as criminal trespass, 41 A.L.R.4th 805.

87 C.J.S. Trespass §§ 144 to 147.