New Mexico Statutes
Part 4 - TRAFFIC LAWS GENERALLY
Section 66-7-363.1 - Department of transportation; agreements with owners or lessees of highway frontage; provisions.

A. Notwithstanding the responsibility of the department of transportation under the provisions of Section 66-7-363 NMSA 1978 to construct, inspect regularly and maintain fences along all highways under its jurisdiction, the department of transportation may enter into an agreement with an owner or lessee of property adjoining a public highway to keep a specified section of the highway frontage unfenced for use as roadside business; provided, however, that the owner or lessee, whoever is party to the agreement, agrees:
(1) to assume full responsibility for constructing and maintaining livestock fencing on the property that the owner or lessee owns or leases in such a manner so as to prevent the entry of livestock onto the highway; and
(2) to be liable for any damage caused by livestock entering upon the public highway from the owner's or lessee's property if the property in question is not fenced or the fencing not maintained pursuant to the agreement with the department of transportation.
B. Nothing in this section shall preclude an owner or lessee who has entered into an agreement with the department of transportation pursuant to this section from also being subject to the penalties set out in Section 66-7-363 NMSA 1978.
History: 1953 Comp., § 40A-8-10.1, enacted by Laws 1975, ch. 283, § 1; 1978 Comp., § 30-8-14, recompiled and amended as § 66-7-363.1 by Laws 2019, ch. 155, § 2.
Recompilations. — Laws 2019, ch. 155, § 2 recompiled and amended former 30-8-14 NMSA 1978 as 66-7-363.1 NMSA 1978, effective June 14, 2019.
The 2019 amendment, effective June 14, 2019, revised the statutory citation for the provision requiring the department of transportation to construct, inspect regularly and maintain fences along all highways under its jurisdiction; and in the section heading, deleted "Highway", and added "of transportation".
Duty of department under section. — The department has a duty either to construct fences along all public highways or, as an alternative to fencing, to afford protection to the motoring public in one of the following ways: make a fact determination that no livestock can enter the highway through portions left unfenced under Section 30-8-13B(1) NMSA 1978; place warning signs on unfenced highways under Section 30-8-13B(2) NMSA 1978; or enter agreements with owners or lessees of property where that owner or lessee assumes full responsibility for constructing and maintaining livestock fencing to prevent livestock from entering the highway under Subsection A of this section. Madrid v. N.M. 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.
Fence designed with gaps. — Under 30-8-13 and 30-8-14 NMSA 1978, the highway could be designed with gaps in the fences, provided that the design also include coverage for the gaps by one of the protective measures outlined by those sections. Madrid v. N.M. 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.

Structure New Mexico Statutes