Fences, gates, public easement

[Llaves]

regarding law in NEW MEXICO

My property is bordered by National Forest and contains an easement for a Forest Service road. There is a grazing allotment on the north and south sides of my property. I have fenced the property to keep out the cattle. The Forest Service installed cattle guards where the fence meets the road. The permittee (grazer) claims he has the right to open gates adjacent to cattle guards or to cut fences in order to drive his cattle around the cattle guards and across my property, ostensibly staying on the road easement (though how three riders on horseback can keep 40 animals on the road is beyond my imagination). I have found this statute:

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.

This seems to suggest that the permittee does NOT have the right to open gates or cut fences to access the public road. Of course, there may be other relevant laws that contradict this.

Specific citations in your reply would be very much appreciated.

 

[justalayman]

well, I suspect the law you cited does not take into consideration for this:

My property is bordered by National Forest and contains an easement for a Forest Service road.

If you are preventing them from utilizing the easement (presuming the use is allowed), then they can cut the fence. If the fence is not obstructing any portion of the easement, they they would have no right to cut the fence.

 

[Llaves]

the easement is for a road crossing the property. While I don't have the document easily accessible, I do recall that it specifically called for the construction of cattle guards in the road at the property lines, presumably so that a fence could be built to the edge of the cattle guards in order to keep cattle off the property. The fence does not impede the use of the road, but does cross a portion of the easement. Since the easement is wider than the road, it would be impossible to prevent livestock from entering the property if the fence had to stop at the boundary of the easement.

 

[justalayman]

The fence does not impede the use of the road, but does cross a portion of the easement. Since the easement is wider than the road, it would be impossible to prevent livestock from entering the property if the fence had to stop at the boundary of the easement.

there ya go. You are blocking their use of the easement. As such, they have a right to remove what is blocking their use.

Now whether they must restore it or otherwise prevent the cattle from entering your property is another issue but for now, I see no reason to see they cannot cut the fence.

 

[LdiJ]

the easement is for a road crossing the property. While I don't have the document easily accessible, I do recall that it specifically called for the construction of cattle guards in the road at the property lines, presumably so that a fence could be built to the edge of the cattle guards in order to keep cattle off the property. The fence does not impede the use of the road, but does cross a portion of the easement. Since the easement is wider than the road, it would be impossible to prevent livestock from entering the property if the fence had to stop at the boundary of the easement.

That still doesn't answer the question as to whether or not the cattle can be moved without taking down the fence or opening gates.

 

[Llaves]

All these responses presuppose that an easement for a public road includes the right to drive cattle along the road. Since it is virtually impossible to do this and keep the cattle on the road, it is not obvious to me that such a right exists. But that's why my original posts asked for citations of NM law, rather than opinions.

 

[LdiJ]

All these responses presuppose that an easement for a public road includes the right to drive cattle along the road. Since it is virtually impossible to do this and keep the cattle on the road, it is not obvious to me that such a right exists. But that's why my original posts asked for citations of NM law, rather than opinions.

If grazing allotments were granted, then the ability to move cattle on and off the grazing areas would have to be part of the picture. That isn't opinion, that's common sense. If you are trying to fight this battle based on the fact that grazing allotments exist, but the owners of the cattle have no method to move them on or off the grazing areas, then I think you are destined to fail.

However, go ahead and run it by a local attorney, with all documentation in hand.

 

[justalayman]

All these responses presuppose that an easement for a public road includes the right to drive cattle along the road. Since it is virtually impossible to do this and keep the cattle on the road, it is not obvious to me that such a right exists. But that's why my original posts asked for citations of NM law, rather than opinions.

you apparently missed where I posted:

If you are preventing them from utilizing the easement (presuming the use is allowed),

I do not have access to your documents clarifying the uses allowed. That is something you would have to research.


and if you want NM law, you are more than welcome to hunt it up. This is not likely something that is in statute but based on common or case law. You are more than welcome to research that as well.

 

[csi7]

Each of the legal responses give additional information to be researched.

However, the whole process requires the evidence of paperwork, photographs, surveys, and the legal requirements of everyone involved to be presented equally.

In this situation, there is no real singular definition of right or wrong legal choice/consequence for a particular action.

 

[154NH773]

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.

This seems to suggest that the permittee does NOT have the right to open gates or cut fences to access the public road. Of course, there may be other relevant laws that contradict this.

I disagree that this statute prevents the cattle driver from opening the fence to drive his cattle on the road. The statute apparently refers to a "private road" that the driver has no right to access (although court interpretations may clarify that statement). So that takes us back to what many of the other posters have stated; you must determine what rights were granted by the easement and for who's benefit. Without that determination, we are all just guessing.