August 29, 2012 – Board of County Commissioners of the County of Bernalillo v. Ivan Benavidez, No. 29,853

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:
Filing Date: 	August 29, 2012
NO. 29,853
BOARD OF COUNTY COMMISSIONERS
OF THE COUNTY OF BERNALILLO,
Plaintiff-Appellant,
v.
IVAN BENAVIDEZ,
Defendant-Appellee.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Robert M. Schwartz, District Judge
Jeffrey S. Landers, Bernalillo County Attorney
Eric W. Schuler, Assistant County Attorney
Natalia R. Sanchez, Assistant County Attorney
Albuquerque, NM
for Appellant
Joshua R. Simms, P.C.
Joshua R. Simms
Albuquerque, NM
for Appellee

OPINION
BUSTAMANTE, Judge.
{1} 	At issue in this case is whether counties may enact ordinances which conflict
directly with state statutes reflecting the State of New Mexico’s free range or “fence-
out” approach to livestock management. 	Holding that they cannot, we affirm the
district court’s dismissal of the criminal complaint filed against Defendant Ivan
Benavidez by the County of Bernalillo.
BACKGROUND
{2} 	The County filed a criminal complaint in the Metropolitan Court against
Benavidez asserting that he “[d]id allow six cattle to run at large on John Dantis Road,
SW and on Metropolitan Detention Center property,” contrary to Bernalillo County,
N.M., Code of Ordinances ch. 6, art. VI, § 6-53 (2009) of the Bernalillo County Code.
Section 6-53 is part of the Bernalillo County Ordinance generally addressing animals.
Section 6-53(a)—the specific part of the ordinance applicable here—provides that:
(a) 	It is unlawful for a person to allow or permit any animal to run at
large in or on any alley, street, sidewalk, vacant lot, public property,
other unenclosed place in the county, or private property without the
permission of the property owner.
{3} 	Benavidez filed a motion to dismiss arguing that Section 6-53(a) conflicted with
state law reflecting New Mexico’s free range—or “fence-out”—approach to livestock
management. Benavidez asserted that he and his family have been running cattle on

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the west side of the county “for over 50 years” and that his family had leased land
from Westland Corporation which extended over “9 mile hill,” including the land
surrounding the Metropolitan Detention Center (MDC). 	In response, the County
argued that it had the authority to enact Section 6-53(a) pursuant to its general police
power. It also argued that the ordinance did not conflict with state law and, if it did,
the parts applicable to Benavidez were severable and enforceable. The Metropolitan
Court agreed with Benavidez and dismissed the complaint with prejudice.
{4} 	The County appealed to the district court where the parties made essentially the
same arguments to the same effect: that is, the district court also granted Benavidez’
motion to dismiss. 	In the district court, the County stipulated that the “lands in
question 	in 	this 	cause 	are 	not 	within 	the 	boundaries 	of 	an 	incorporated 	or
unincorporated municipality, nor are they located in a conservancy district or military
base.”

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ANALYSIS
{5} 	Given that we are presented with issues of pure law, our standard of review is
de novo. Smith v. Bernalillo Cnty., 2005-NMSC-012, ¶ 18, 137 N.M. 280, 110 P.3d
496.
{6} 	The County concedes that New Mexico follows the open range model of
livestock management. The common law of England required animal owners to keep
their stock confined and imposed liability on owners for harm caused by animals
running at large. Sears v. Fewson, 15 N.M. 132, 135, 103 P. 268, 268 (1909). New
Mexico—along with most of the western states—did not recognize or follow the
English rule. Rather, in New Mexico, livestock are allowed to run at large without
responsibility for their trespass on the unenclosed property of others. Hill v. Winkler,
21 N.M. 5, 11-14, 151 P. 1014, 1016-17 (1915). 	The County itself notes in its
briefing that “[t]his rule, which is commonly known as ‘fence[-]out,’ was codified in
a series of statutes enacted over a period of decades.” The most direct expression of
the Legislature’s adoption of the free range approach to livestock management are
NMSA 1978, Section 77-16-1 (1909) and NMSA 1978, Section 66-7-363(C) (1978).
Section 77-16-1, enacted in 1909, gave statutory voice to the common law “fence-out”
rule noted in Hill, by requiring land owners to construct a fence meeting statutory
standards to protect their property from livestock. Section 77-16-1 provides:

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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.
Thus, absent a proper fence, a landowner living in an area where the running of
livestock is lawful had no claim for damages caused by livestock unless the trespass
was proven to be willful. 21 N.M. at 13, 151 P. at 1016; Stewart v. Oberholtzer, 57
N.M. 253, 256, 258 P.2d 369, 370-71 (1953).
{7} 	Section 	66-7-363(C) 	constitutes 	a 	relatively 	recent 	affirmation 	by 	the
Legislature of its commitment to the free range approach to running of livestock.
Section 66-7-363(C) provides:
Owners of livestock ranging in pastures through which unfenced roads
or highways pass shall not be liable for damages by reason of injury or
damage to persons or property occasioned by collisions of vehicles using
said roads and highways and livestock or animals ranging in said
pastures unless such owner of livestock is guilty of specific negligence
other than allowing his animals to range in said pasture.
This section was enacted in 1966 in apparent direct response to our Supreme Court’s
decision in Grubb v. Wolfe, 75 N.M. 601, 408 P.2d 756 (1965). In Grubb—handed
down on December 13, 1965—our Supreme Court held that the “early day ‘open
range’ rule which relieved an owner of livestock from any duty to keep his animals
off a public highway” would no longer prevail. Id. at 605, 408 P.2d at 759. Instead
the Supreme Court held that “the owner or keeper of livestock capable of doing harm

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from this source of danger owes a duty of reasonable care to prevent them from
wandering unrestrained on the public way.” 	Id. at 607, 408 P.2d at 760 (internal
quotation marks and citation omitted). Within three months, the Legislature enacted
what is now codified as Section 66-7-363 reinstating the common law rule. 	1966
N.M. Laws, ch. 44, § 2.
{8} 	The County admits that enforcement of Section 6-53 requires all owners to
fence-in their livestock in all unincorporated areas of the County, which “is not
required under state statute.” 	This admission on its face would seem to sound the
death knell of Section 6-53(a). But, the County argues, Section 6-53 is not expressly
or implicitly preempted by state statute and, in the absence of preemption, the general
police power given to it by NMSA 1978, § 4-37-1 (1975) is sufficient to support
adoption of Section 6-53(a). We disagree.
Section 4-37-1 provides:
All counties are granted the same powers that are granted
municipalities except for those powers that are inconsistent with
statutory or constitutional limitations placed on counties. 	Included in
this grant of powers to the counties are those powers necessary and
proper to provide for the safety, preserve the health, promote the
prosperity and improve the morals, order, comfort and convenience of
any county or its inhabitants. The board of county commissioners may
make 	and 	publish 	any 	ordinance 	to 	discharge 	these 	powers 	not
inconsistent with statutory or constitutional limitations placed on
counties.

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The County asserts that the provision granting counties “the same powers that are
granted municipalities” gives it the authority to enact Section 6-53(a) because
municipalities are specifically given the power to “prohibit the running at large of any
animal within the boundary of the municipality.” 	NMSA 1798, § 3-18-3(A)(2)
(1971). 	We note that the municipal power to prohibit animals running at large is
consistent with the state statute prohibiting animals from running “at large within the
limits of any city, town or village incorporated or unincorporated.” 	NMSA 1978,
Section 77-14-35 (1999) (making it a misdemeanor to allow livestock to run at large
within municipal boundaries).
{9} 	The specificity and consistency of Sections 3-18-3(A)(2) and 77-14-35 argue
against the County’s position because there is no comparable provision preventing
livestock from running at large outside of municipalities; that is, in unincorporated
areas of the State’s counties. Rather, as the County itself accurately catalogs, there are
statutes specifically—and narrowly—describing areas in which and methods by which
counties are allowed to limit the free range default law. For example, NMSA 1978,
Section 77-14-4 (1989) allows boards of county commissioners to “prohibit the
running at large of livestock within the limits of any conservancy or irrigation district
organized under the laws of the state, and within any portion of a military reservation

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or enclave . . . situate . . . in such county.” 	The County stipulates that MDC and
Dantis Road are not within any conservancy district or military reservation.
{10} 	Similarly, state statutes allow for the creation by counties of “herd law
districts.” 	See NMSA 1978, §§ 77-12-1 to -12 (1923, as amended through 1999).
Section 77-12-2 describes a procedure by which landowners can ask a county to create
a herd law district. Once a herd law district is “declared,” the fence-out approach to
damage by livestock is reversed; that is, a person suffering harm may collect damages
even if he does not have a proper fence erected. Section 77-12-5. There are no other
statutory provisions directly addressing county authority to enact ordinances limiting
free running of livestock.
{11} 	We distill from these provisions no intent by the Legislature to allow counties
the general power to disallow the free running of livestock in unincorporated or open
areas of their jurisdictions. The intent and effect of Section 6-53(a) is to do precisely
that. 	As such, it is directly contrary to—or inconsistent with—state law and thus
beyond the County’s authority. See § 4-37-1.
{12} 	The County relies on a case from Idaho in support of its arguments. Benewah
Cnty. Cattlemen’s Ass’n, Inc. v. Bd of Cnty. Comm’rs of Benewah Cnty., 668 P.2d 85
(1983). Benewah is distinguishable. While the Idaho provisions describing county
powers are similar to New Mexico’s, other provisions are too different from New

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Mexico’s to provide any guidance. For example, the Benewah Court concluded that
Idaho’s herd law districts could not be created in open range lands and thus precluded
the county there from enacting a “fence-in” ordinance which applied to open range
within its boundaries. 	668 P.2d at 89. 	This limitation on the creation of herd law
districts simply does not apply in New Mexico. In addition, we agree with the dissent
in Benewah that the majority took an improperly narrow view of state law when it
ignored the general law of open range in Idaho. Id. at 92-93 (Bistline, J., dissenting).
We agree with the dissent’s analysis in Benewah. That analysis, unsurprisingly, tracks
ours.
CONCLUSION
{13} 	Concluding that a bit of the Wild West survives in New Mexico, we affirm the
district court.
{15} 	IT IS SO ORDERED.
MICHAEL D. BUSTAMANTE, Judge
WE CONCUR:
CYNTHIA A. FRY, Judge
J. MILES HANISEE, Judge