El Nuevo mexicano., 1918-02-21

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The opinions follows:
NO POWER GIVEN TO
CORPORATION COMMISSION
In re increase Of fifteen cents per
ton over and above the rates now in
force for the transportation Of coal be-
tween points in New Mexico by rail-
road companies operating therein. No.
2135.
From Corporation Commission.
This proceeding was removed to
this court by the state corporation
commission pursuant to section Z of
article XII of the state constitution for
the purpose Of securing the enforce
ment of an order made by the coIn-
mission relative to rates for the trans
~portation of GOAL. Enforcement denied
Syllabus by the Court.
q /. The burden of producing evil
dence to warrant a proposed order
by the state corporation commission
rests upon the commission. where it
initiates the proceeding, and the SUI
preme court can determine the rea-
condolences Of the lawfulness Of an
order made by it only upon the evil
dence adduced before the commission
and presented to the court by the rec
ord.
%. Neither by the constitution nor
by statute is the commission given
the power to suspend a proposed tar
if. and the law does not cast upon a
railway company the burden of justi-
flying a rate or proposed tariff.
3. The state corporation commits
sion can not cast the burden of justi-
fying a rate upon the carrier by esrv-
ing it with an order to show aus
why a given rate should not be estab-
lished. -H
Opinion by Justice Roberts, Chief
Justice Hanna and Justice Parker con-
curing.
MUST PROTECT SECTIONS
FROM NEIGHBORS' CATTLE.
RI. A. Jastro, ct al, appellees, VS.. Elias
Francis, ct al, appellants, McKin-
ley, No. 2096.
This is a suit to procure an injunc-
ton in the district court to restrain
appellants from going upon and across
the appellee's lands, being the odd
numbered sections of which the APP
pellees were the owners, and for dam
ages for trespass on the said sections
alleging damages in the sun of $4,000.
Issue was Joined, after filing answer
by appellants, and upon trial, the
court rendered judgment for the APP
pellee assessing their damages in the
sum of $1,000, from which judgment
appellants prosecuted this appeal.
Judgment of the court below reversed
cause remanded with instructions TO
dismiss the complaint.
Syllabus by the Court.
1. Where a party is the owner of
the odd-numbered sections of land, &C
quired by purchase from a railroad
company Of grant lands, the odd-num-
bered sections having been granted by
the government to aid in the building
of railroads, and the even-numbered
sections are largely owned by the gov
eminent, the remainder Of the ven
numbered sections being either
school sections or held in private own
ership, a court of equity will not, at
the instance of the owner OF the odd
numbered sections, enjoin an owner
of livestock from grazing his sheep
or cattle on the odd-numbered sec
tions, in the absence of a legal fence
maintained by such owner, or com
pliance by such owner with the pro-
visions of section 80, code 1915, as
such an Injunction would have the
effect Of giving to the owner of the
odd-numbered section absolute con-
troll and dominion yer the govern
ment lands, included in the townships
embracing such privately owned odd
numbered sections.
2. Under section 80, code 1915, an
oner Of private lands may protect the
same from tresspass by stock under
herd, by conspicuously marking. the
boundaries of the same, and posting
notices in conspicuous places thereon
warning against tresspass or serving
written notice giving the description
of such lands by metes and bounds.
Held, that where it is not shown that
q party knows the boundaries of pri-
vately owned land, surrounded by gov
eminent domain, he can not be en-
joined from driving his flocks and
nerds upon such lands, unless the
owner has complied with this statute.
Opinion by Justice Roberts, Chief
Justice Hanna and Justice Parker,
%concurring.
RAILROAD RIGHTS PREVAIL
IN GALLUP TOWNSHIP CASE.
Daniel P. Dugan, appellee, VS.. Alejan-
dro Montoya, as probate judge, ct
al, appellants, Mckinley county,
No. 2098.
This is an action instituted in the
court below by appellee against appel
liant as probate judge of the county
Of Mckinley, state of New Mexico, and
all or any parties unknown, interested
in the land described in the COM
plant. The action was brought under
the provisions OF section 5516 code
1915. This section authorized the per-
son interested to institute suit in the
district court against the probate
Judge and others interested. to secure
a determination of the question of the
party'a right to q deed.