We sometimes hear people say something like, “New Mexico is a fence-out state, so if you don’t want free-roaming horses on your property, build a fence.”
How do New Mexico’s “fence-out” and livestock impoundment laws apply to free-roaming horses? To sort out the legalese, we reviewed materials from a recent professional seminar for lawyers entitled, “The Law and Horses in New Mexico,” sponsored by the State Bar of New Mexico.
Fence-out laws: not what you think
Many states, including New Mexico, have “fence-out” laws that protect livestock owners from certain kinds of claims and lawsuits. New Mexico fence-out statutes say that if a landowner wants to be able to request compensation for damage to his crops or lands by someone’s livestock, he must have installed a “sufficient” fence (see NM statutes section 77, article 16).
A key point is that fence-out statutes pertain to claiming damages against the owner of trespassing livestock. This important context and legal intent may not be apparent to a lay person reading the individual statutes. If your neighbor’s cow barges into your properly fenced garden and eats all your cabbages, you can claim damages and expect to be financially compensated—and even keep the cow until your neighbor pays for your damages! But the fence-out statutes simply aren’t relevant to the ownerless horses that roam Placitas.
Are fences a good solution anyway?
Although fencing is certainly one way to prevent horse incursions on your land, a number of Placitas subdivisions have legally-binding covenants restricting installation of fences. Fences are also costly. And many types of fences are harmful to wildlife. Wire fences are a well-documented danger to ground birds and low-swooping hawks and owls, and elk and deer can get entangled in fences and die. Extensive fencing may prevent wildlife from moving through its natural range. Putting up a lot of fences in Placitas — which sits between two important wildlife corridors — could create more problems for our already stressed wildlife. But sometimes, fences are a good solution for protecting yards, land and the habitat that wildlife needs. If you’re considering a fence, you can learn about wildlife-friendly fences here.
Fence or no fence, does a property owner have the right to impound trespassing horses? Absolutely. Fence-out laws don’t have any bearing on the right to impound estrays. Legally, they are two separate matters.
Property owners may impound free-roaming horses that trespass as long as they notify the NM Livestock Board and follow appropriate procedures (see NM statutes section 77, article 14). The New Mexico District Court has affirmed that the Placitas free-roaming horses are considered estray livestock and fall under the statutes related to estrays.
A number of frustrated Placitas residents have resorted to borrowing portable fence panels to corral trespassing horses. They tell us the NM Livestock Board came out promptly, usually within hours, to pick up the horses.
If you have questions about laws and regulations related to free-roaming horses, we recommend contacting the NM Livestock Board (www.nmlbonline.com) or an attorney versed in livestock law. The statutes can be challenging for lay persons to interpret, and this has led to a lot of confusion and misinformation in the Placitas community.