New Mexico state record. (Santa Fe, N.M.) 1914-19??, 1918-06-14
DECISION REGARDING THE
PASSAGE OF STOCK OVER
CHECKERBOARDS EXPLAINED

sire fuller information regarding the
decision handed down by Suprcne
Court Justice Clarence J. Roberts
in the matter of checkerboard sec
tions of land, held in part be rail
ways and in part by private owners
or lessees from the state, the decision
is presented in the official language
Of the court, in less confusing form
than the condensed account isen
in the Record of last week.
In their motion for rehearing filed
herein appellees have called to the
attention of the court an error in the
statement of faces, in this,-It s
stated that the appellants were the
owners, under lease, of a 1900 acf,
tract of land Immediately cas-. of
townships IS and 16 north, range 7
vest, N. M. p. NJ, and that the stock
ot The Fernandez Company was lar yc-
~ owned by the appellees. Further
that 'on the 9th Jay of April, 'Sl.,
the Fernandez Company and Ella,
Francis & Son entered into written
contract by which It was agreed Sat
q line Of iron posts should be erected
un the range lin: between rarscs
and Q west. etc" and the remainder
on the third paragraph is the state
nent of facts. All these facts were
alleged in appellants answer or cross
no lno us1o!I1s sIsM. 1nQ @u!cEdWoo
motion of appellees by the trial court.
The action Of the court in striking
out the same was assigned as error,
but was not considered by this court
as we did not find it necessary to
pass upon the question presented. The
sixth paragraph of the answer. the
material facts therein alleged being
set forth in the statement of facts,
was likewise stricken by the trial
court. As our conclusion was not
influenced by the facts set forth in
the pleadings filed by appellants,
stricken as stated by the trial court,
such facts could we'll have been omit
ted from the statement. have care
fully considered the motion filed for
rehearing and the able brief in
support of the same but find no reason
for departing from the conclusion
reached in the former opinion. The
motion for rehearing will therefore
CLARENCE J. ROBERTS
Justice.
concurrins Opinion On
Motion For Rehearing
concur in the denial of the motion
for rehearing in this case. In so
doing I desire to state that feel
bound by the controlling authority
of the circuit court of appeals and of
the supreme court of the United
States as to the right of the implied
license to Craze the public domain,
and in so doing, if necessary, to
cross lands held in private owner
ship. The holding of the Federal
courts is based upon the provisions
of the Nact of February Is, 1885, 23
Stat. 322, which has been interpreted
by them to absolutely prohibit any
person, by any means, from obstruct-
ing the free passage or transit over
of through the public lands. And in
the case of the owner of alternate
railroad sections, he is held out to
have the right, by any means what.
ever, to prevent the passage to or use
of the even-numbered sections within
the range of his holdings If odd
numbered sections are owned by the
This conclusion is con-
trary to the ordinary rules governing
property rights and is no doubt in
duced by the terms of the statute
as contrued. A different conclusion
which commends itself to me,
was reached in U. S. ". Rindge, 208
Fed. Gil. Feeling bound, however,
by the decisions referred to in the
opinion by Mr.. Justice Roberts, l
concur in the disposition heretofore
made of this case, with such correc-
tion in the statement of facts as has
been made by him.
In regard to the right of way over
the sections held in private owner
ship. l think the we'll known prin-
cip1es governing easements should
apply, to the effect that in the ex-
ercise of the easement the
utmost reasonable care is to
be exercised by the claimant of
to be exercised by the claimant of
the easement 50 as to do the least
damage to the servient estate. Prac-
tically applied to such circumstances
as exist in this case, these principles
would require the crossing of herds
of animals at section corners rather
than at any other place upon the
alternate sections held in private
FRANK w. PARKER,
I concur in the foregoing. Justice.
RICHARD H: HANNA,