{ "id": 8841324, "name": "GALLEGOS v. ALLEMAND et al.", "name_abbreviation": "Gallegos v. Allemand", "decision_date": "1945-03-28", "docket_number": "No. 4870", "first_page": "97", "last_page": "99", "citations": [ { "type": "official", "cite": "49 N.M. 97" }, { "type": "parallel", "cite": "157 P.2d 493" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "174 P. 427", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "185 P. 273", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "25 N.M. 540", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4734304 ], "opinion_index": 0, "case_paths": [ "/nm/25/0540-01" ] }, { "cite": "38 N.M. 441", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1559146 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/38/0441-01" ] }, { "cite": "180 P. 287", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "25 N.M. 215", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4734457 ], "opinion_index": 0, "case_paths": [ "/nm/25/0215-01" ] }, { "cite": "174 P. 426", "category": "reporters:state_regional", "reporter": "P.", "pin_cites": [ { "page": "427" } ], "opinion_index": 0 }, { "cite": "24 N.M. 467", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8512785 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/24/0467-01" ] }, { "cite": "151 P. 1014", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "21 N.M. 5", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2387434 ], "opinion_index": 0, "case_paths": [ "/nm/21/0005-01" ] }, { "cite": "39 N.M. 307", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1573379 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/39/0307-01" ] } ], "analysis": { "cardinality": 279, "char_count": 4363, "ocr_confidence": 0.742, "pagerank": { "raw": 2.865114278970581e-07, "percentile": 0.8417473373930294 }, "sha256": "52c02c21769821cbf580fc64cc434bea48b4f09eb7d36743fa983b53eea33495", "simhash": "1:67d2356137b1c281", "word_count": 749 }, "last_updated": "2023-07-14T18:53:24.152648+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "MABRY, C. J, and SADLER, BICK-' LEY, and LUJAN; JJ., concur." ], "parties": [ "GALLEGOS v. ALLEMAND et al." ], "opinions": [ { "text": "BRICE, Justice.\nThe question is whether the appellants are liable to the appellee for $35 damages because of a trespass made by their cattle on appellee\u2019s land.\nThe trial court found that appellants\u2019 lands were not enclosed by a legal fende and therefore under the statute, Secs. 49-1801 and 49-1803, N.M.Sts.1941, they are not so liable unless the trespass was willful. We stated in Wright v. Atkinson, 39 N.M. 307, 46 P.2d 667, 668:\n\u201cRelief as against willful trespass is not dependent upon the existence of the statutory fence. Hill v. Winkler, 21 N.M. 5, 151 P. 1014; Vanderford v. Wagner, 24 N.M. 467, 174 P. 426, 427; Frostenson v. Marshall, 25 N.M. 215, 180 P. 287; Carnes v. Withers, 38 N.M. 441, 34 P.2d 1092; Gutierrez v. Montosa Sheep Co., 25 N.M. 540, 185 P. 273.\n\u201cAnd if \u2018the owner of the animals drove them upon the lands of the injured party, or turned them loose upon other lands knowing that they would necessarily enter the lands of the injured party, and intended- that they should do so,\u2019 the case is one of willful trespass.\u201d\nThe first question is whether the finding of the court, that there was a willful trespass, is supported by substantial evidence. The evidence in support of this finding, viewed from appellee\u2019s standpoint, is as follows :\nAppellee was the owner of 14,000 acres of pasture land enclosed by a fence; appellants were the owners of 300 acres of land about three miles away from ap-pellee\u2019s pasture, on which they purported to graze fifty (appellants say twenty-five) head of cattle. The 300 acres were totally insufficient to carry these cattle. Adjoining them, and lying between their land and that of appellee, was the land of one Vigil. The fence between appellants\u2019 and Vigil was such that it did not hinder appellants\u2019 cattle from going on Vigil\u2019s land to graze, to which Vigil did not object. They passed across Vigil\u2019s land and entered appellee\u2019s land through his fence. They were often seen in appellee\u2019s pasture and once ap-pellee Adam Gallegos was seen driving them out. Appellee requested appellants many times to keep their cattle off his land, but they refused or failed to do so until after this suit was filed, since which time their cattle have not grazed on ap-pellee\u2019s land. Just prior to the time that appellants\u2019 cattle went upon appellee\u2019s land a lease of 1,000 acres from appellee to appellants had expired. While it was in force the appellants grazed their cattle thereon. There is no evidence that appellants drove their cattle to, or turned them loose on, appellee\u2019s land. If appellee was entitled to recover damages then it was necessary for him to prove that appellants turned their cattle upon other lands \u201cknowing that they would necessarily enter the lands of the appellee, and that appellants intended that they should do so.\u201d\nIn the case of Vanderford v. Wagner, supra [24 N.M. 467, 174 P. 427], the evidence showed that the owner of burros had entered the land of the plaintiff fifteen or twenty times; but it was held that this was not evidence, of a wilful trespass, that the evidence must^ show \u201cthat the owner of the animals drove them upon the lands of the injured party, or turned them loose upon other lands, knowing that they would necessarily enter the lands of the injured party, and intended that they should do so.\u201d\nWhile the evidence does show that appellants did not have sufficient grass of their own to pasture their cattle and therefore it was a reasonable inference that they turned them loose with the intention and knowledge on their part, that they would graze upon adjacent lands sttch as those of Vigil; it did not necessarily follow that they \u201cintended\u201d that they should graze on appellee\u2019s land. The record does not show that the lands of Vigil together with those of appellants afforded insufficient pasturage for appellants\u2019 cattle.\nWe are of the opinion that there is not substantial evidence to support the trial court\u2019s finding that appellants were guilty of a wilful trespass.\nThe cause should be reversed and remanded with instructions .to the district court to dismiss appellee\u2019s suit. And it is so ordered.\nMABRY, C. J, and SADLER, BICK-' LEY, and LUJAN; JJ., concur.", "type": "majority", "author": "BRICE, Justice." } ], "attorneys": [ "H. B. Hamilton, of Las Vegas, for appellants.", "Hilario Rubio, of Las Vegas, for ap-pellee." ], "corrections": "", "head_matter": "157 P.2d 493\nGALLEGOS v. ALLEMAND et al.\nNo. 4870.\nSupreme Court of New Mexico.\nMarch 28, 1945.\nH. B. Hamilton, of Las Vegas, for appellants.\nHilario Rubio, of Las Vegas, for ap-pellee." }, "file_name": "0097-01", "first_page_order": 119, "last_page_order": 121 }