{ "id": 4190703, "name": "BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF BERNALILLO, Plaintiff-Appellant, v. IVAN BENAVIDEZ, Defendant-Appellee", "name_abbreviation": "Board of County Commissioners v. Benavidez", "decision_date": "2012-08-29", "docket_number": "No. 33,831; Docket No. 29,853", "first_page": "291", "last_page": "296", "citations": [ { "type": "official", "cite": "2013-NMCA-015" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "668 P.2d 85", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 2348309 ], "weight": 3, "year": 1983, "pin_cites": [ { "page": "89" }, { "page": "92-93", "parenthetical": "Bistline, J., dissenting" } ], "opinion_index": 0, "case_paths": [ "/idaho/105/0209-01" ] }, { "cite": "75 N.M. 601", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5374916 ], "weight": 6, "year": 1965, "pin_cites": [ { "page": "605" }, { "page": "759" }, { "page": "607" }, { "page": "760", "parenthetical": "internal quotation marks and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nm/75/0601-01" ] }, { "cite": "57 N.M. 253", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8841652 ], "weight": 2, "year": 1953, "pin_cites": [ { "page": "256" }, { "page": "370-71" } ], "opinion_index": 0, "case_paths": [ "/nm/57/0253-01" ] }, { "cite": "151 P. 1014", "category": "reporters:state_regional", "reporter": "P.", "weight": 2, "year": 1915, "pin_cites": [ { "page": "1016-17" }, { "page": "1016" } ], "opinion_index": 0 }, { "cite": "21 N.M. 5", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2387434 ], "weight": 2, "year": 1915, "pin_cites": [ { "page": "11-14" }, { "page": "13" } ], "opinion_index": 0, "case_paths": [ "/nm/21/0005-01" ] }, { "cite": "103 P. 268", "category": "reporters:state_regional", "reporter": "P.", "year": 1909, "pin_cites": [ { "page": "268" } ], "opinion_index": 0 }, { "cite": "15 N.M. 132", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 206026 ], "year": 1909, "pin_cites": [ { "page": "135" } ], "opinion_index": 0, "case_paths": [ "/nm/15/0132-01" ] }, { "cite": "2005-NMSC-012", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 929175 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 18" } ], "opinion_index": 0, "case_paths": [ "/nm/137/0280-01" ] } ], "analysis": { "cardinality": 665, "char_count": 11404, "ocr_confidence": 0.808, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.13767424278403875 }, "sha256": "cfcf7465e1005a710f51e620f35f8e29cb0f461c922e13098f41fb334dcee691", "simhash": "1:06012dc8e6c94e52", "word_count": 1844 }, "last_updated": "2023-07-14T14:46:09.531131+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "MICHAEL D. BUSTAMANTE, Judge", "CYNTHIA A. FRY, Judge", "J. MILES HANISEE, Judge" ], "parties": [ "BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF BERNALILLO, Plaintiff-Appellant, v. IVAN BENAVIDEZ, Defendant-Appellee." ], "opinions": [ { "text": "OPINION\nBUSTAMANTE, Judge.\n{1} At issue in this case is whether counties may enact ordinances which conflict directly with state statutes reflecting the State of New Mexico\u2019s free range or \u201cfence-out\u201d approach to livestock management. Holding that they cannot, we affirm the district court\u2019s dismissal of the criminal complaint filed against Defendant Ivan Benavidez by the County of Bernalillo.\nBACKGROUND\n{2} The County filed a criminal complaint in the Metropolitan Court against Benavidez asserting that he \u201c[d]id allow six cattle to run at large on John Dantis Road, SW and on Metropolitan Detention Center property,\u201d contrary to Bernalillo County, N.M., Code of Ordinances ch. 6, art. VI, \u00a7 6-53 (2009) of the Bernalillo County Code. Section 6-53 is part of the Bernalillo County Ordinance generally addressing animals. Section 6-53(a) \u2014 the specific part of the ordinance applicable here \u2014 provides that:\n(a) It is unlawful for a person to allow or permit any animal to run at large in or on any alley, street, sidewalk, vacant lot, public property, other unenclosed place in the county, or private property without the permission of the property owner.\n{3} Benavidez filed a motion to dismiss arguing that Section 6-53(a) conflicted with state law reflecting New Mexico\u2019s free range \u2014 or \u201cfence-out\u201d \u2014 approach to livestock management. Benavidez asserted that he and his family have been running cattle on the west side of the county \u201cfor over 50 years\u201d and that his family had leased land from Westland Corporation which extended over \u201c9 mile hill,\u201d including the land surrounding the Metropolitan Detention Center (MDC). In response, the County argued that it had the authority to enact Section 6-53(a) pursuant to its general police power. It also argued that the ordinance did not conflict with state law and, if it did, the parts applicable to Benavidez were severable and enforceable. The Metropolitan Court agreed with Benavidez and dismissed the complaint with prejudice.\n{4} The County appealed to the district court where the parties made essentially the same arguments to the same effect: that is, the district court also granted Benavidez\u2019 motion to dismiss. In the district court, the County stipulated that the \u201clands in question in this cause are not within the boundaries of an incorporated or unincorporated municipality, nor are they located in a conservancy district or military base.\u201d\nANALYSIS\n{5} Given that we are presented with issues of pure law, our standard of review is de novo. Smith v. Bernalillo Cnty., 2005-NMSC-012, \u00b6 18, 137 N.M. 280, 110 P.3d 496.\n{6} The County concedes that New Mexico follows the open range model of livestock management. The common law of England required animal owners to keep their stock confined and imposed liability on owners for harm caused by animals running at large. Sears v. Fewson, 15 N.M. 132, 135, 103 P. 268, 268 (1909). New Mexico \u2014 along with most of the western states \u2014 did not recognize or follow the English rule. Rather, in New Mexico, livestock are allowed to run at large without responsibility for their trespass on the unenclosed property of others. Hill v. Winkler, 21 N.M. 5, 11-14, 151 P. 1014, 1016-17 (1915). The County itselfnotes in its briefing that \u201c[tjhis rul\u00e9, which is commonly known as \u2018fence[-]out,\u2019 was codified in a series of statutes enacted over a period of decades.\u201d The most direct expression of the Legislature\u2019s adoption of the free range approach to livestock management are NMS A 1978, Section 77-16-1 (1909) and NMSA 1978, Section 66-7-363(C) (1978). Section 77-16-1, enacted in 1909, gave statutory voice to the common law \u201cfence-out\u201d rule noted in Hill, by requiring land owners to construct a fence meeting statutory standards to protect their property from livestock. Section 77-16-1 provides:\nEvery gardener, farmer, planter or other person having lands or crops that would be injured by trespassing animals, shall make a sufficient fence about his land in cultivation, or other lands that may be so injured, the same to correspond with the requirements of the laws of this state prescribing and defining a legal fence.\nThus, absent a proper fence, a landowner living in an area where the running of livestock is lawful had no claim for damages caused by livestock unless the trespass was proven to be willful. 21 N.M. at 13, 151 P. at 1016; Stewart v. Oberholtzer, 57 N.M. 253, 256, 258 P.2d 369, 370-71 (1953).\n{7} Section 66-7-363(C) constitutes a relatively recent affirmation by the Legislature of its commitment to the free range approach to running of livestock. Section 66-7-363(C) provides:\nOwners of livestock ranging in pastures through which unfenced roads or highways pass shall not be liable for damages by reason of injury or damage to persons or property occasioned by collisions of vehicles using said roads and highways and livestock or animals ranging in said pastures unless such owner of livestock is guilty of specific negligence other than allowing his animals to range in said pasture.\nThis section was enacted in 1966 in apparent direct response to our Supreme Court\u2019s decision in Grubb v. Wolfe, 75 N.M. 601, 408 P.2d 756 (1965). In Grubb \u2014 handed down on December 13, 1965 \u2014 our Supreme Courtheld that the \u201cearly day \u2018open range\u2019 rule which relieved an owner of livestock from any duty to keep his animals off a public highway\u201d would no longer prevail. Id. at 605, 408 P.2d at 759. Instead the Supreme Court held that \u201cthe owner or keeper of livestock capable of doing harm from this source of danger owes a duty of reasonable care to prevent them from wandering unrestrained on the public way.\u201d Id. at 607, 408 P.2d at 760 (internal quotation marks and citation omitted). Within three months, the Legislature enacted what is now codified as Section 66-7-363 reinstating the common law rule. 1966 N.M. Laws, ch. 44, \u00a7 2.\n{8} The County admits that enforcement of Section 6-53 requires all owners to fence-in their livestock in all unincorporated areas of the County, which \u201cis not required under state statute.\u201d This admission on its face would seem to sound the death knell of Section 6-53(a). But, the County argues, Section 6-53 is not expressly or implicitly preempted by state statute and, in the absence of preemption, the general police power given to it by NMSA 1978, \u00a7 4-37-1 (1975) is sufficient to support adoption of Section 6-53(a). We disagree.\nSection 4-37-1 provides:\nAll counties are granted the same powers that are granted municipalities except for those powers that are inconsistent with statutory or constitutional limitations placed on counties. Included in this grant of powers to the counties are those powers necessary and proper to provide for the safety, preserve the health, promote the prosperity and improve the morals, order, comfort and convenience of any county or its inhabitants. The board of county commissioners may make and publish any ordinance to discharge these powers not inconsistent with statutory or constitutional limitations placed on counties.\nThe County asserts that the provision granting counties \u201cthe same powers that are granted municipalities\u201d gives it the authority to enact Section 6-53(a) because municipalities are specifically given the power to \u201cprohibit the running at large of any animal within the boundary of the municipality.\u201d NMSA 1798, \u00a7 3-18-3(A)(2) (1971). We note that the municipal power to prohibit animals running at large is consistent with the state statute prohibiting animals from running \u201cat large within the limits of any city, town or village incorporated or unincorporated.\u201d NMSA 1978, Section 77-14-35 (1999) (making it a misdemeanor to allow livestock to run at large within municipal boundaries).\n{9} The specificity and consistency of Sections 3-18-3(A)(2) and 77-14-35 argue against the County\u2019s position because there is no comparable provision preventing livestock from running at large outside of municipalities; that is, in unincorporated areas of the State\u2019s counties. Rather, as the County itself accurately catalogs, there are statutes specifically \u2014 and narrowly \u2014 describing areas in which and methods by which counties are allowed to limit the free range default law. For example, NMSA 1978, Section 77-14-4 (1989) allows boards of county commissioners to \u201cprohibit the running at large of livestock within the limits of any conservancy or irrigation district organized under the laws of the state, and within any portion of a military reservation or enclave . . . situate ... in such county.\u201d The County stipulates thatMDC and Dantis Road are not within any conservancy district or military reservation.\n{10} Similarly, state statutes allow for the creation by counties of \u201cherd law districts.\u201d See NMSA 1978, \u00a7\u00a7 77-12-1 to -12 (1923, as amended through 1999). Section 77-12-2 describes a procedure by which landowners can ask a county to create a herd law district. Once a herd law district is \u201cdeclared,\u201d the fence-out approach to damage by livestock is reversed; that is, a person suffering harm may collect damages even if he does not have a proper fence erected. Section 77-12-5. There are no other statutory provisions directly addressing county authority to enact ordinances limiting free running of livestock.\n{11} We distill from these provisions no intent by the Legislature to allow counties the general power to disallow the free running of livestock in unincorporated or open areas of their jurisdictions. The intent and effect of Section 6-53(a) is to do precisely that. As such, it is directly contrary to \u2014 or inconsistent with \u2014 state law and thus beyond the County\u2019s authority. See \u00a7 4-37-1.\n{12} The County relies on a case from Idaho in support of its arguments. Benewah Cnty. Cattlemen\u2019s Ass\u2019n, Inc. v. Bd of Cnty. Comm\u2019rs of Benewah Cnty., 668 P.2d 85 (1983). Benewah is distinguishable. While the Idaho provisions describing county powers are similar to New Mexico\u2019s, other provisions are too different from New Mexico\u2019s to provide any guidance. For example, the Benewah Court concluded that Idaho\u2019s herd law districts could not be created in open range lands and thus precluded the county there from enacting a \u201cfence-in\u201d ordinance which applied to open range within its boundaries. 668 P.2d at 89. This limitation on the creation of herd law districts simply does not apply in New Mexico. In addition, we agree with the dissent in Benewah that the majority took an improperly narrow view of state law when it ignored the general law of open range in Idaho. Id. at 92-93 (Bistline, J., dissenting). We agree with the dissent\u2019s analysis in Benewah. That analysis, unsurprisingly, tracks ours.\nCONCLUSION\n{13} Concluding that a bit of the Wild West survives in New Mexico, we affirm the district court.\n{14} IT IS SO ORDERED.\nMICHAEL D. BUSTAMANTE, Judge\nWE CONCUR:\nCYNTHIA A. FRY, Judge\nJ. MILES HANISEE, Judge", "type": "majority", "author": "BUSTAMANTE, Judge." } ], "attorneys": [ "Jeffrey S. Landers, Bernalillo County Attorney Eric W. Schuler, Assistant County Attorney Natalia R. Sanchez, Assistant County Attorney Albuquerque, NM for Appellant", "Joshua R. Simms, P.C. Joshua R. Simms Albuquerque, NM for Appellee" ], "corrections": "", "head_matter": "Certiorari Denied, December 5, 2012,\nNo. 33,831\nIN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2013-NMCA-015\nFiling Date: August 29, 2012\nDocket No. 29,853\nBOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF BERNALILLO, Plaintiff-Appellant, v. IVAN BENAVIDEZ, Defendant-Appellee.\nJeffrey S. Landers, Bernalillo County Attorney Eric W. Schuler, Assistant County Attorney Natalia R. Sanchez, Assistant County Attorney Albuquerque, NM for Appellant\nJoshua R. Simms, P.C. Joshua R. Simms Albuquerque, NM for Appellee" }, "file_name": "0291-01", "first_page_order": 307, "last_page_order": 312 }