New Mexico Statutes
Part 4 - TRAFFIC LAWS GENERALLY
Section 66-7-363 - Animals on highway; highway fencing.

A. It is unlawful for any person, during the hours of darkness, to ride a horse or other animal upon the traveled portion of any highway that is normally used by motor vehicles.
B. It is unlawful for any person negligently to permit livestock to wander or graze upon any fenced highway at any time or, during the hours of darkness, to drive livestock along or upon any highway that is normally used by motor vehicles.
C. 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 the roads and highways and livestock ranging in the pastures unless the owner of the livestock is guilty of negligence other than allowing livestock to range in the pasture.
D. As the department of transportation's annual budget permits, the department of transportation shall:
(1) construct, inspect regularly and maintain fences along all highways under its jurisdiction and provide cattle underpasses, water pipelines and cattle guards as the department of transportation may deem necessary, unless it makes a fact determination that no livestock can enter the highway from a portion left unfenced; and
(2) post proper signs along all highways under its jurisdiction that are not fenced on both sides and that are located adjacent to property containing livestock. The signs shall be located at intervals of not more than two miles along such unfenced highways; provided that sign intervals and postings shall be consistent with the department of transportation's specifications for a uniform system of traffic-control devices, subject to traffic safety engineering discretion, and shall warn motorists that loose livestock may be encountered and that caution should be used.
E. A person who violates the provisions of Subsection A or B of this section is guilty of a penalty assessment misdemeanor.
History: 1941 Comp., § 68-2469, enacted by Laws 1953, ch. 139, § 119.1; 1953 Comp., § 64-18-62; Laws 1965, ch. 221, § 1; 1966, ch. 44, § 2; recompiled as 1953 Comp., § 64-7-363, by Laws 1978, ch. 35, § 467; 2018, ch. 74, § 52; 2019, ch. 155, § 1.
Cross references. — For unlawfully permitting livestock upon public highways, see 30-8-13 NMSA 1978.
For herd law districts, see 77-12-12 NMSA 1978.
The 2019 amendment, effective June 14, 2019, required the department of transportation to maintain fencing, cattle guards and livestock warning signs on public highways; in the section heading, added "highway fencing"; added a new Subsection D and redesignated former Subsection D as Subsection E; and in Subsection E, after "provisions of", added "Subsection A or B of".
The 2018 amendment, effective July 1, 2018, provided a penalty for a violation of the provisions of this section, and made technical changes; in Subsection C, after "livestock", deleted "or animals", and after "allowing", deleted "his animals" and added "livestock"; and added Subsection D.
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, 2013-NMCERT-012.
Purpose of this section is to protect the motoring public. Mitchell v. Ridgway, 1966-NMSC-265, 77 N.M. 249, 421 P.2d 778; Roderick v. Lake, 1989-NMCA-050, 108 N.M. 696, 778 P.2d 443, cert. denied, 108 N.M. 681, 777 P.2d 1325.
Applicability of Subsection C. — The focus of Subsection C is the duty of a livestock owner with respect to animals on a highway. Its application is limited to unfenced highways. Madrid v. New Mexico State Hwy. Dep't, 1994-NMCA-006, 117 N.M. 171, 870 P.2d 133, cert. denied, 117 N.M. 215, 870 P.2d 753.
Owner not liable when had no knowledge horses free. — Where plaintiff's car collided with defendant's horse on a highway, defendant was not liable where defendant had no knowledge of his horses being on the highway and neighbor's horse released defendant's horses by kicking their gate down. Steed v. Roundy, 342 F.2d 159 (10th Cir. 1965).
Section inapplicable to horse owner using due care in crossing highway. — Where plaintiff has used due care in preparing to move herd of horses across highway, this section was not applicable. Knox v. Trujillo, 1963-NMSC-132, 72 N.M. 345, 383 P.2d 823.
Basis of livestock owner's liability is negligence. — The basis of any liability on the part of defendant in wrongful death action where decedent collided with defendant's cow on highway and was killed was negligence. Tapia v. McKenzie, 1971-NMCA-128, 83 N.M. 116, 489 P.2d 181.
Even before the 1965 amendment to this section (which inserted "negligently" before "to permit" in Subsection B), the word "permit," and the fact that Section 30-8-13 NMSA 1978 was later in time, necessitated that negligence be shown on the part of the owner of livestock running at large upon the public highways before liability will attach against him for damages or losses sustained by others by reason thereof. Steed v. Roundy, 342 F.2d 159 (10th Cir. 1965).
Livestock on range. — Determination of negligence on part of rancher not required where he permitted bull to be on highway which traversed unfenced pasture land owned by him, even though prior to the accident he had other livestock injured in accidents. Carrasco v. Calley, 1968-NMCA-061, 79 N.M. 432, 444 P.2d 617.
Despite increased frequency of accidents between defendant's cattle and cars traveling the highway which passed through defendant's open pasturelands, defendant had no duty to either fence the highway or abandon his pastures. He had been relieved by the legislature of responsibility for permitting his cattle to graze in pastures adjacent to the unfenced highway; and furthermore, the fact that there was water available on both sides of the highway operated against any inference of negligence on his part. Dean v. Biesecker, 1975-NMSC-021, 87 N.M. 389, 534 P.2d 481.
Owner of livestock has duty to care for his property as a reasonable man, and he may be liable for injuries to motorists resulting from collisions with his animals due to his negligence in permitting them to be on the highway. Mitchell v. Ridgway, 1966-NMSC-265, 77 N.M. 249, 421 P.2d 778.
Trier of facts determines whether owner of animal used reasonable care to restrain his livestock. Mitchell v. Ridgway, 1966-NMSC-265, 77 N.M. 249, 421 P.2d 778.
Law reviews. — For comment on Grubb v. Wolfe, 75 N.M. 601, 408 P.2d 756 (1965), see 6 Nat. Resources J. 306 (1966).
Am. Jur. 2d, A.L.R. and C.J.S. references. — Owner's liability, under legislation forbidding domestic animals to run at large on highways, as dependent on negligence, 34 A.L.R.2d 1285.
Liability of person, other than owner of animal or owner or operator of motor vehicle, for damage to motor vehicle or injury to person riding therein resulting from collision with domestic animal at large in street or highway, 21 A.L.R.4th 132.
Liability of owner or operator of vehicle for damage to motor vehicle or injury to person riding therein resulting from collision with domestic animal at large in street or highway, 21 A.L.R.4th 159.
Liability of owner of animal for damage to motor vehicle or injury to person riding therein resulting from collision with domestic animal at large in street or highway, 29 A.L.R.4th 431.
Liability of governmental entity for damage to motor vehicle or injury to person riding therein resulting from collision between vehicle and domestic animal at large in street or highway, 52 A.L.R.4th 1200.
Liability for killing or injuring, by motor vehicle, of livestock or fowl on highway, 55 A.L.R.4th 822.

Structure New Mexico Statutes