Jastro v. Francis

Citations

• 24 N.M. 127
• 172 P. 1139

Syllabus

<p>SYLrl/ABUS BY THE COURT.</p> <p>1. Where a party is the owner of the odd-numbered sections of land, acquired by purchase from a Railroad company of grant lands, the odd-numbered sections having been granted by the government to aid in the building of the railroad, and the even-numbered sections are largely owned by the government, the remainder of the even-numbered sections being either school sections or held in private ownership, a court of equity will not, at the instance of the owner of the odd-numbered sections, enjoin an owner of live stock from grazing his sheep or cattle on the odd-numbered sections, in the absence of a legal fence maintained by such owner, or compliance by such owner with the provisions of section 39, Code 1915, as such an injunction would have the effect of giving to the owner of the odd-numbered sections absolute control and dominion over the government lands, included in the townships embracing such privately owned odd-numbered sections.</p> <p>P. 133</p> <p>2. Under section 39, Code 1915, an owner of private lands may protect the same from trespass by stock under herd, by conspicuously marking the boundaries of the same, and posting notices in. conspicuous places thereon warning against trespass or serving written notice giving description of such lands by metes and hounds. Held, that where it is not shown that a party knows the boundaries of privately owned land, surrounded by government domain, he cannot be enjoined from driving his flocks and herds upon such lands, unless the owner has complied with this statute.</p> <p>P. 137</p> <p>On Motion for Rehearing.</p> <p>3. In the exercise of the right of way over sections held in private ownership, the utmost reasonable care is to be exercised by the claimants of the right, so as to do the least damage to the servient esta'e, which, practically applied, would require herds to cross at section, corners rather than at any .other place upon the servient sections.</p> <p>P. 142</p>