Fences

NMSA 1978 ch. 77, art. 16

in effect

NMSA 1978, § 77-16-1 [Necessity for fence.]

77-16-1. [Necessity for fence.] 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. Laws 1909, ch. 70, § 1; Code 1915, § 2340; C.S. 1929, § 50-101; 1941 Comp., § 49-1801; 1953 Comp., § 47-17-1.

NMSA 1978, § 77-16-2 Definition

77-16-2. Definition As used in Article 16 of Chapter 77 [NMSA 1978], "livestock" shall include domestic animals such as cattle, horses, sheep, hogs, goats and buffaloes. 1953 Comp., § 47-17-1.1, enacted by Laws 1977, ch. 189, § 2.

NMSA 1978, § 77-16-3 [Damages on fenced lands; right of action; lien on animals.]

77-16-3. [Damages on fenced lands; right of action; lien on animals.] 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]. Laws 1909, ch. 70, § 2; Code 1915, § 2341; C.S. 1929, § 50-102; 1941 Comp., § 49-1802; 1953 Comp., § 47-17-2.

NMSA 1978, § 77-16-4 [Barbed wire fence; specifications.]

77-16-4. [Barbed wire fence; specifications.] When fences are constructed of barbed wire and posts they shall be built substantially as follows: posts set firmly in the ground aand [and] projecting above the ground not less than four feet, said posts to be not less than two inches in diameter at the smaller end, and to be set not over thirty-three feet apart; four barbed wires to be strung firmly and securely fastened to said posts, the bottom wire to be placed approximately twelve inches from the ground, the second wire to be approximately twelve inches above the bottom wire, the third wire to be approximately twelve inches above the second wire and the fourth wire to be approximately twelve inches above the third wire; and between each two posts there shall be placed approximately equidistant apart three stays to be securely fastened to said wires for the purpose of holding the wires in position. Any four-wire fence greater or equivalent to said fence in strength and resisting power shall be considered a legal fence. Laws 1909, ch. 13, § 1; Code 1915, § 2342; Laws 1923, ch. 94, § 1; C.S. 1929, § 50-103; 1941 Comp., § 49-1803; 1953 Comp., § 47-17-3.

NMSA 1978, § 77-16-5 [Applicability of act.]

77-16-5. [Applicability of act.] This act [77-16-4, 77-16-5 NMSA 1978] shall not apply to territory within an incorporated city, town or village nor shall it be construed to repeal, amend or in anywise affect the provisions of Chapter 88 of the Session Laws of 1919, as amended by Chapter 70 of the Session Laws of 1921 [repealed]. Laws 1923, ch. 94, § 2; C.S. 1929, § 50-104; 1941 Comp., § 49-1804; 1953 Comp., § 47-17-4.

NMSA 1978, § 77-16-6 [Board fence; specifications.]

77-16-6. [Board fence; specifications.] When the fence is constructed of lumber and posts the boards shall be at least one inch thick and six inches wide with posts as described in the preceding section [77-16-4 NMSA 1978] not over eight feet apart and firmly set in the ground as described in said section. The boards [are] to be firmly nailed to the posts. The space between the boards [is] not to be more than six inches. Laws 1909, ch. 13, § 2; Code 1915, § 2343; C.S. 1929, § 50-105; 1941 Comp., § 49-1805; 1953 Comp., § 47-17-5.

NMSA 1978, § 77-16-7 [Pole and post fence; specifications.]

77-16-7. [Pole and post fence; specifications.] When the fence is constructed of poles and posts the posts shall not be more than twelve feet apart and of the same size and set in the ground as described in Section 77-16-4 NMSA 1978. The poles [are] to be at least two inches in diameter at the smaller end and [are] to be at least four in number firmly fastened to the posts with nails or wire, the top pole at least four feet from the ground and the bottom pole not more than one foot from the ground and the poles [are] not to be more than one foot apart. Laws 1909, ch. 13, § 3; Code 1915, § 2344; C.S. 1929, § 50-106; 1941 Comp., § 49-1806; 1953 Comp., § 47-17-6.

NMSA 1978, § 77-16-8 [Stone, adobe or woven wire fence; specifications.]

77-16-8. [Stone, adobe or woven wire fence; specifications.] When the fence is constructed of stone, adobe, woven wire or any other material it shall be at least four feet in height and equal in strength to the fence described in Section 77-16-4 NMSA 1978. Laws 1909, ch. 13, § 4; Code 1915, § 2345; C.S. 1929, § 50-107; 1941 Comp., § 49-1807; 1953 Comp., § 47-17-7.

NMSA 1978, § 77-16-9 [Legal protection of fences against damage or destruction.]

77-16-9. [Legal protection of fences against damage or destruction.] All fences shall be considered as under the care and protection of the law, for damages done, or destruction committed thereon. Laws 1869, ch. 20, § 1; C.L. 1884, § 1272; C.L. 1897, § 1814; Code 1915, § 2347; C.S. 1929, § 50-109; 1941 Comp., § 49-1808; 1953 Comp., § 47-17-8.

NMSA 1978, § 77-16-10 Injuring fence

77-16-10. Injuring fence Any person who is found guilty of wilfully cutting or otherwise destroying a fence or any part thereof is guilty of a petty misdemeanor. Laws 1869, ch. 20, § 2; C.L. 1884, § 1273; C.L. 1897, § 1815; Code 1915, § 2348; C.S. 1929, § 50-110; 1941 Comp., § 49-1809; 1953 Comp., § 47-17-9; Laws 1981, ch. 365, § 1.

NMSA 1978, § 77-16-11 [Injuries by animals; liability; minors.]

77-16-11. [Injuries by animals; liability; minors.] When any animal, of whatsoever class or species it may be, [shall] break, obstruct or injure any rail, post, stake or any material of which a fence is constructed, the owner of such animal shall be compelled to pay the damages occasioned to the owner of the fence, according to the damages sustained and suffered: provided, that if any animal be taken near any fence, and it shall result in his injuring it, then the person who ordered the animal to be placed there shall pay the damage, and if the herder who has the care of the animal, shall take them there without order from the owner of them, in such case, the father, mother or guardian of him who drove the animals there, if the herder be a minor, shall pay the damages, and if he be of age, he himself shall pay it when he does it without the express order of the owner. Laws 1869, ch. 20, § 3; C.L. 1884, § 1274; C.L. 1897, § 1819; Code 1915, § 2352; C.S. 1929, § 50-114; 1941 Comp., § 49-1810; 1953 Comp., § 47-17-10.

NMSA 1978, § 77-16-12 [Damages for injuries.]

77-16-12. [Damages for injuries.] The person who shall violate the provisions of Section 77-16-11 NMSA 1978 shall be obliged at the time of his punishment, to indemnify the owner of any fence, for the damage that has followed therefrom, for the repairing of his fence, valued according to the gravity of the offense. Laws 1869, ch. 20, § 4; C.L. 1884, § 1275; C.L. 1897, § 1820; Code 1915, § 2353; C.S. 1929, § 50-115; 1941 Comp., § 49-1811; 1953 Comp., § 47-17-11.

NMSA 1978, § 77-16-13 [Opening private fence to use road prohibited.]

77-16-13. [Opening private fence to use road prohibited.] That it shall be illegal for any person or persons in the state of New Mexico, to open any fence or fences of any private individual or individuals, for the purpose of using the road, or roads, passing through the private property of any person or persons. Laws 1897, ch. 39, § 1; C.L. 1897, § 1825; Code 1915, § 2354; C.S. 1929, § 50-116; 1941 Comp., § 49-1812; 1953 Comp., § 47-17-12.

NMSA 1978, § 77-16-14 [Failure to close gate; liability for damages.]

77-16-14. [Failure to close gate; liability for damages.] That any person, or persons, who open the gate of any fence, or fences, of any person or persons, the same being private property, for the purpose of passing as aforesaid, [and] shall neglect to close the gate of any fence or fences after having opened the same, shall be subject to and responsible for the damage to the land, crop or grass of the owner, or owners, of such land, through such neglect; and such damage shall be appraised as provided by law. Laws 1897, ch. 39, § 2; C.L. 1897, § 1826; Code 1915, § 2355; C.S. 1929, § 50-117; 1941 Comp., § 49-1813; 1953 Comp., § 47-17-13.

NMSA 1978, § 77-16-15 Penalty

77-16-15. Penalty In addition to the damage as provided for in Section 77-16-14 NMSA 1978, the person violating the provisions of that section is guilty of a misdemeanor, and upon conviction before any magistrate shall be fined in a sum not less than two hundred fifty dollars ($250) nor more than one thousand dollars ($1,000). Laws 1897, ch. 39, § 3; C.L. 1897, § 1827; Code 1915, § 2356; C.S. 1929, § 50-118; 1941 Comp., § 49-1814; 1953 Comp., § 47-17-14; 2011, ch. 46, § 1.

NMSA 1978, § 77-16-16 Railroads; fencing of lines; damage

77-16-16. Railroads; fencing of lines; damage 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. 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.

NMSA 1978, § 77-16-17 [Requirements of railroad fence.]

77-16-17. [Requirements of railroad fence.] That for the purposes of the preceding two sections [77-16-16 NMSA 1978] a sufficient and suitable fence is defined and declared to be a fence at least four and one-half feet high, constructed of posts and wire, the top wire to be four and one-half feet above the ground and shall have at least four wires upon posts not exceeding twenty feet apart. Laws 1889, ch. 75, § 3; 1889, ch. 141, § 1; C.L. 1897, § 243; Code 1915, § 30; C.S. 1929, § 4-105; 1941 Comp., § 49-1817; 1953 Comp., § 47-17-17.

NMSA 1978, § 77-16-18 Report of killed or crippled livestock; inspection and removal

77-16-18. Report of killed or crippled livestock; inspection and removal A. Every railroad in this state, upon discovery of livestock killed or crippled upon a section of the railroad right-of-way, shall immediately make a report thereof to an inspector of the cattle sanitary board [New Mexico livestock board] or to any other person designated by the board for the purpose of receiving the report. B. The report required by Subsection A shall designate the place where the crippled or killed livestock is located and the brand on the livestock. The board, or a person designated by it, shall promptly inspect the stock, notify the owner and make a report of the inspection, including therein the age, color, sex, approximate weight, marks and brand of the stock. One copy of the report shall be transmitted by the inspector to the board, one to the owner of the stock and one to the railroad. C. Dead livestock shall not be destroyed by the railroad until the inspection required by this section is made, but if the inspection is not made within twenty-four hours after transmittal of the report by the railroad, the railroad may bury the dead stock and shall thereupon promptly notify the board, or the person designated by it, of the place of burial so that inspection may be made. D. A railroad which fails to make any report required by this section is guilty of a petty misdemeanor. E. "Railroad" as used in this section includes any person, firm or corporation. 1953 Comp., § 47-17-18, enacted by Laws 1963, ch. 180, § 1.

Source: New Mexico Compilation Commission (nmonesource.com)URL: https://nmonesource.com/nmos/nmsa-unanno/en/item/18580/index.doFetched: 10/20/2026