When any trespassing shall have been done by any cattle, horses, sheep, goats, hogs or other livestock upon the cultivated or enclosed ground of any other person, when the same is fenced as provided by Section 77-16-1 NMSA 1978, but not otherwise, such person may recover any damage that he may sustain by reason thereof by suit in any court having jurisdiction and a person so damaged is hereby given a lien on all livestock of the same kind and brand, belonging to the owner of such trespassing animal or animals for security of his damages and costs; but in no case shall he have such lien nor shall he be entitled to recover any damages, under any circumstances, for such trespass, unless he has such lands and crops enclosed by a legal fence as provided by the preceding section [77-16-1 NMSA 1978].

History: Laws 1909, ch. 70, § 2; Code 1915, § 2341; C.S. 1929, § 50-102; 1941 Comp., § 49-1802; 1953 Comp., § 47-17-2.

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

Compiler's notes. — The words "preceding section" at the end of this section refer to Laws 1909, ch. 70, § 1, presently compiled as 77-16-1 NMSA 1978.

Notice required for landowner to recover for depasturing. — The owner of private lands may prevent its depasturing by others by marking its boundaries and posting notices on it, or serving written notices upon parties not to trespass thereon, provided the owner so complies with this statute, but otherwise he cannot recover damages for such depasturing. Jastro v. Francis, 1918-NMSC-036, 24 N.M. 127, 172 P. 1139.

And theory of implied contract not available. — Absent a finding of willfulness, this section specifically denies the right of recovery for trespassing animals on unfenced lands, and there is no ground for recovery on any theory of implied contract. Kinsolving v. Reed, 1964-NMSC-131, 74 N.M. 284, 393 P.2d 20.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 4 Am. Jur. 2d Animals § 70.

3A C.J.S. Animals § 140.