Every gardener, farmer, planter or other person having lands or crops that would be injured by trespassing animals, shall make a sufficient fence about his land in cultivation, or other lands that may be so injured, the same to correspond with the requirements of the laws of this state prescribing and defining a legal fence.

History: Laws 1909, ch. 70, § 1; Code 1915, § 2340; C.S. 1929, § 50-101; 1941 Comp., § 49-1801; 1953 Comp., § 47-17-1.

Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law.

Cross references. — For fences along exterior of herd law districts, see 77-12-9 NMSA 1978.

For fences within irrigation districts, see 77-14-11 NMSA 1978.

For unlawful fences, see 77-16-4, 77-16-6 and 77-16-7 NMSA 1978.

Ordinance conflicted with free range of livestock management. — Where the county filed a criminal complaint against defendant for allowing defendant's cattle to run at large in violation of a county ordinance that made it unlawful for a person to allow or permit an animal to run at large; and the land in question was not within the boundary of a municipality, a conservancy district, or a military base, the metropolitan court properly dismissed the criminal complaint because the ordinance conflicted with New Mexico's free range or "fence out" approach to livestock management as expressed in Subsection C of Section 66-7-363 NMSA 1978 and Section 77-16-1 NMSA 1978, and the county did not have general authority to disallow the free running of livestock in unincorporated or open areas of their jurisdiction. Bernalillo Bd. of Co. Comm'rs v. Benavidez, 2013-NMCA-015, 292 P.3d 482, cert. denied, 2012-NMCERT-012.

Owner's duty to enclose property. — Where the running of livestock is lawful, it is the duty of the owner of property to effectively enclose it should he desire to keep roaming stock off his premises. Stewart v. Oberholtzer, 1953-NMSC-042, 57 N.M. 253, 258 P.2d 369.

Legal fence not necessary for landowner's recovery for damages. — Recovery of damages caused by trespassing animals and the award of injunctive relief is not barred by failure to have lands enclosed by a legal fence, where trespass complained of is proven to have been willfully committed. Frostenson v. Marshall, 1919-NMSC-010, 25 N.M. 215, 180 P. 287.

Recovery for willful trespass may be had regardless of the existence of a statutory fence. Gallegos v. Allemand, 1945-NMSC-012, 49 N.M. 97, 157 P.2d 493.

Relief as against willful trespass is not dependent upon the existence of the statutory fence. Wright v. Atkinson, 1935-NMSC-047, 39 N.M. 307, 46 P.2d 667; Carnes v. Withers, 1934-NMSC-059, 38 N.M. 441, 34 P.2d 1092; Vanderford v. Wagner, 1918-NMSC-099, 24 N.M. 467, 174 P. 426; Hill v. Winkler, 1915-NMSC-077, 21 N.M. 5, 151 P. 1014.

Landowner's burden of proof. — Since landowner did not have a legal fence, before he may recover, it must be shown that the claimed trespasser drove his animals upon the lands of the injured party or willfully turned them loose upon other lands knowing that they would necessarily enter the lands of the injured party, and intended that they should do so. Woofter v. Lincoln, 1957-NMSC-031, 62 N.M. 297, 309 P.2d 622.

A plaintiff, to recover damages from a defendant for willfully permitting cattle to trespass on his land, is required to prove that defendant turned cattle loose upon other's land, cognizant that the cattle would inevitably enter upon lands belonging to plaintiff and that such result was intended to follow. Gallegos v. Allemand, 1945-NMSC-012, 49 N.M. 97, 157 P.2d 493.

No recovery by landowner without willfulness or legal fence. — Where there was no "willful trespass" in action for damages to land by defendant's sheep, and lands were not shown to be in locality governed by the Herd Law (77-12-1 to 77-12-12 NMSA 1978), and where the lands of plaintiff and defendant were separated by a fence which was not a lawful fence as contemplated by 77-16-1 to 77-16-4 NMSA 1978, no damages were recoverable. Carnes v. Withers, 1934-NMSC-059, 38 N.M. 441, 34 P.2d 1092.

Owner of unfenced lands cannot recover damages for the injury occasioned by trespassing animals thereon, where such animals are lawfully at large and the trespass is not willful. Carnes v. Withers, 1934-NMSC-059, 38 N.M. 441, 34 P.2d 1092; Vanderford v. Wagner, 1918-NMSC-099, 24 N.M. 467, 174 P. 426.

No right to retain trespassing animals. — No person has a lien or right to retain possession of any animals trespassing on his lands unless they are fenced by not less than four wires firmly fastened to posts. Candelaria v. Gutierrez, 1924-NMSC-070, 30 N.M. 195, 230 P. 436.

Effect of this section is to deny a defendant the right to exercise force in expelling trespassing livestock from his premises, unless the trespass is willful. Stewart v. Oberholtzer, 1953-NMSC-042, 57 N.M. 253, 258 P.2d 369.

Landowner may recover for damages. — Where animals have been turned out by their owners with the certainty that they will go upon the unfenced lands owned by another, the landowner can recover damages even though his land is not fenced. 1915 Op. Att'y Gen. No. 15-1561, 1915 Op. Att'y Gen. No. 15-1649, and 1916 Op. Att'y Gen. No. 16-1769.

This section does not repeal 77-14-3 NMSA 1978. 1915 Op. Att'y Gen. No. 15-1567.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 4 Am. Jur. 2d Animals § 70; 35 Am. Jur. 2d Fences § 1 et seq.

Constitutionality of fence and stock laws, 6 A.L.R. 212, 18 A.L.R. 67.

"Owner," meaning and import of term, in statute as to fencing against animals, 95 A.L.R. 1098.

What constitutes willful trespass by stock on land not inclosed by legal fence, 158 A.L.R. 375.

Zoning regulations prohibiting or limiting fences, hedges, or walls, 1 A.L.R.4th 373.

Fences as factor in fixing location of boundary line - modern cases, 7 A.L.R.4th 53.

Liability for killing or injuring, by motor vehicle, livestock or fowl on highway, 55 A.L.R.4th 822.

Validity of statutes requiring the construction of fences - modern cases, 87 A.L.R.4th 1129.

3A C.J.S. Animals § 140; 36A C.J.S. Fences § 1 et seq.