A. Every railroad in this state whose lines of road, or any part thereof, are open for use and every railroad company formed or to be formed shall, within six months after the lines of the railroad or any part thereof are open, erect and thereafter maintain fences on the sides of the railroad or the part thereof so open for use, suitably and amply sufficient to prevent cattle, horses, sheep, mules, burros and hogs from getting on the railroad, except at the crossings of public roads and highways and within the limits of municipalities and shall also construct, where not already done, and maintain at all public road crossings now existing or hereafter established cattle guards suitable and sufficient to prevent cattle, horses, sheep, burros, mules and hogs from getting onto the railroad. If any railroad fails to construct and maintain fences and cattle guards as directed in this section, the railroad shall be liable to the owner for all damages resulting from injury or death caused to any livestock, including reasonable attorney fees, on order of the court should legal proceedings be commenced by the owner. Should the New Mexico livestock board be unable to determine ownership of livestock crippled or killed by the railroad within thirty days of the date it first receives notice of such injury or death, by report or otherwise, then the board may institute legal proceedings in the name of the unknown owner in any court of competent jurisdiction and recover damages as provided in this section, and the proceeds shall be disposed of as provided for under the laws pertaining to estrays.

B. In the event that a fence is in a condition of neglect, disrepair or nonexistence, the adjacent landowner may contact the railroad supervisor or the owner of the right of way by certified mail, return receipt requested, and demand repair or construction to the legal standard provided in Section 77-16-17 NMSA 1978. Within thirty days thereafter, the railroad shall commence construction or provide proof of intent to comply, and after ten more days, if the railroad has failed to commence construction or to comply with agreed-upon terms of construction or repair, the adjacent landowner may repair, construct or cause to be repaired or constructed the fence at the expense of the railroad calculated at the cost of commercial rates common to the area. If the railroad fails to comply within thirty days of presentation of proof of cost, the landowner shall be compensated in an amount equal to two times the amount of the presented proof plus any cost of litigation, including attorney fees.

C. State-owned railroads and narrow-gauge and recreational railroads are exempt from the provisions of this section.

History: Laws 1889, ch. 75, § 1; 1889, ch. 139, § 1; C.L. 1897, § 241; Laws 1901, ch. 86, § 1; Code 1915, § 28; C.S. 1929, § 4-103; 1941 Comp., § 49-1815; 1953 Comp., § 47-17-15; Laws 1965, ch. 9, § 1; 2013, ch. 145, § 1.

The 2013 amendment, effective June 14, 2013, provided for enforcement of railroad fencing requirements by adjacent landowners; added the title, and added Subsections B and C.

This section authorizes a common-law action to recover damages for killing of livestock proximately resulting from the failure to fence. Hittson v. Chicago, R.I. & Pac. Ry. Co., 1939-NMSC-004, 43 N.M. 122, 86 P.2d 1037.

Failure to fence not negligent per se. — Failure to construct fences is not negligence per se, but only places the burden of proof upon the defendant railroad companies to show lack of negligence. Reagan v. El Paso & N.E. Ry. Co., 1910-NMSC-006, 15 N.M. 270, 106 P. 376; Pecos Valley & N.E. Ry. Co. v. Cazier, 1905-NMSC-017, 13 N.M. 131, 79 P. 714.

Exclusive remedy. — An adequate remedy to owners is provided by 47-17-16, 1953 Comp. (now repealed), and the remedy is exclusive. Hittson v. Chicago, R.I. & P. Ry., 1939-NMSC-004, 43 N.M. 122, 86 P.2d 1037 (decided under former law now repealed).

And railroad may waive affidavit. — Under 47-17-16, 1953 Comp. (now repealed), the requirement of affidavit of ownership and injury by the owner may be waived by the railroad. Hittson v. Chicago, R.I. & P. Ry., 1939-NMSC-004, 43 N.M. 122, 86 P.2d 1037 (decided under former law now repealed).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 65 Am. Jur. 2d Railroads §§ 125 to 148.

Liability of interurban road for killing or injuring livestock running at large, 2 A.L.R. 98, 25 A.L.R. 1506.

Failure to fence as rendering railroad company liable for damage to or by livestock after leaving right of way, 24 A.L.R. 1057.

Dogs as within contemplation of statutes as to duty of railroads as regards livestock, 46 A.L.R. 1536.

74 C.J.S. Railroads § 560.