Albuquerque morning journal. [volume] (Albuquerque, N.M.) 1903-1926, 1908-07-27
IMPORTANT RULING
ON THE FENCING !.
QUESTION
Text Of a Decision by Judge
Pope on Case Bearing Di-
rectIy on Present Difficulty
in Roosevelt County.

cisiOn by Judge w. II. Pope, of tn
fifth New Mexico district. upon a cas-
having direct bearing on the fencinI
problem now causing serious anxiet.
to the farmers and cattlemen o
Roosevelt county:
In the District Court of Roosevelt
county. Nels Curtis, plaintiff. vs.
solomon Bond. l.. +. Strayhorn, de
PENDANTS. No. BAG.
Opinion.
This is an injunction suit brought
by the plaintiff to restrain the defend
ants. Solomon Bond and L.. p. Stray
horn, who is justice of the peace
from enforcing a certain judgment fer
$40 entered by the sale justice of the
peace. as a result of a statutory pro.
ceeding under chapter 70 of the la vs.
Of 1903. based upon damage by certain
cattle belonging to the plaintiff.
Upon the argument the validity #
this judgment is assailed upon three
grounds: % That the statutory no.
tees provided by chapter 10 of tne
laws of 1908, were not given tine
plaintiff prior to the entry Of judy
ment, and that he nae no notice what
ever of the proceedings until after
such judgment. CD That the in ig-
ment Is void as being beyond the in-
risdiction' of the justice OF the peace
under the organic act. CD That the
whole proceedings were invalid for the
reason that hte land of the defendant,
Bond, was not fenced. and that under
the said chapter 70 of the laws of 1908
proceedings lie only in the case of
lands legally fenced.
The court is of opinion that the first
ground is well taken. Upon the proofs
the plaintiff had no legal notice what
ever of this proceeding. or of any
claim for damage until after judg-
ment. Under section | of chapter 70,
the right of the owner of the field
damaged to proceed by appraisers to
be followed by a judgment of the jus
tice of the peace. based upon such a
report of the said appraisers, is given
only after the owner has been duly no.
titled of the damage and has failed to.
proceed 10 satisfy II. There having
no such notice In this case, the
proceeding was alb initio invalid. The
procedure provided by the chapter just
to comes very near to being.
indeed, it is not, within the pro-
vision against taking property with
compliance with its terms Is necessary
the validity of any proceeding CON
Quoted under il.
h second ground of relief is, also,
well taken. Under the organic act,
justices of the peace have no jurisdic-
ton where the debt, or sum claimed.
shall exceed $100. This proceeding,
by which it is sought. upon a iudg-
nent of a justice of the peace. to col
'ect damages in the sum of $14O. is
dearly inimical to the organic act.
This sufficiently disposes of the
present case, but, in view of the i'm
1ortance of the third question raised,
in other pending cases and be-
49, of its effect upon any further
lam for damages arising out of this
PARTICULAR transaction, the views of the
viii be given on this last point.
The direct question is presented as
o whether unfenced crops are within
protection of chapter 10. and
whether damages TO unfenced crops
an be recovered in the courts of this
.fritory. l am of opinion that both
iuc7ti"is inust nc answered
. the affirmative. Chapter 10 of the
TVS OF 1905 s~upercedes section 144 of
ne. compiled Laws of 1897. This lat
n law provides for damages by any
hinals which shall break over. or
hder' or through. or into any lawful ,
icIosufe' or which shall trespass
pom the cultivated fields. ar land or l
mus soWn in domestic grasses, or clo- ,
7rs Tor nay or pasture, or orchards, :
vineyard lands II requires but a
'aulhg of this section of the statute /,
Isl quoted to see h a damages are =
lowed IN TWO instances-One for
Gazing INFO a lawful enclosure and I
e other for trespassing upon certain {
'luS, orchards and vineyards. Sec !
III / OF chapter az, of the laws of ;
when by operating fully ON the II
me SUBJECT matter. superseded and y
peaied said section 144. provides u
al the damage lone to ny culti- II
teu ileIds sown with grain. corn, {
leyaros' orchards. alfalfa or other
domestic grasses. and to all lands W
n enclosed as now required Il
the IA" OF THIS territory, shall be &C
Ior Dy the owner of the animals al
"r"ittlhg such damage or injury. q
!. hhe"lse requires only a read
VI 'his provision of law 10 see that il'
"ases are altorded thereby, both for &C