Any person, company or corporation that may appropriate and stock a range upon the public domain of the United States, or otherwise, with cattle shall be deemed to be in possession thereof: provided, that such person, company or corporation shall lawfully possess or occupy, or be the lawful owner or possessor of sufficient living, permanent water upon such range for the proper maintenance of such cattle.

History: Laws 1889, ch. 61, § 1; C.L. 1897, § 127; Code 1915, § 4628; C.S. 1929, § 111-101; 1941 Comp., § 8-313; 1953 Comp., § 7-3-13.

Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law.

Effect of water rights. — New Mexico does not recognize a limited livestock forage right implicit in a vested water right or a limited livestock forage right implicit in a right-of-way for the maintenance and enjoyment of a vested water right. Walker v. United States, 2007-NMSC-038, 142 N.M. 45, 162 P.3d 882.

Implied license to graze. — There is an implied license on the part of the government to all of the people to graze their animals upon the public domain without compensation. Yates v. White, 1925-NMSC-012, 30 N.M. 420, 235 P. 437; Hill v. Winkler, 1915-NMSC-077, 21 N.M. 5, 151 P. 1014, explained in Vanderford v. Wagner, 1918-NMSC-099, 24 N.M. 467, 174 P. 426, distinguished in Johnson v. Hickel, 1923-NMSC-002, 28 N.M. 349, 212 P. 338.

Grazing on unenclosed land not enjoinable. — Since attempt on the part of the legislature to grant the exclusive right or occupancy upon part of a public domain would be clearly within the prohibition of the act of congress of February 25, 1885, and invalid, defendant cannot be restrained by injunction from permitting his animals to graze on unenclosed lands of plaintiff. Yates v. White, 1925-NMSC-012, 30 N.M. 420, 235 P. 437; Hill v. Winkler, 1915-NMSC-077, 21 N.M. 5, 151 P. 1014, explained in Vanderford v. Wagner, 1918-NMSC-099, 24 N.M. 467, 174 P. 426, distinguished in Johnson v. Hickel, 1923-NMSC-002, 28 N.M. 349, 212 P. 338.

Removal contract void. — Contract to remove one's animals from an illegal enclosure upon the public domain, and to keep them out, is void. Yates v. White, 1925-NMSC-012, 30 N.M. 420, 235 P. 437.

Grazing cattle on federal public lands. — While 19-3-1 NMSA 1978 and this section purport to grant "possessory" interests in public domain lands that may be enforceable against non-federal claimants, no New Mexico statute grants (nor could it grant) a property interest in federal lands that may be enforced against the United States. Diamond Bar Cattle Co. v. United States, 168 F.3d 1209 (10th Cir. 1999).

Possessory rights. — One having appropriated and stocked range with cattle, and being the owner of permanent water for use upon said range for maintenance of cattle thereon, has possessory rights in said public lands, which he has the right to protect. First State Bank v. McNew, 1928-NMSC-040, 33 N.M. 414, 269 P. 56, overruled by Walker v. U.S., 2007-NMSC-038, 142. N.M. 45, 162 P.3d 882..

Effect of water rights. — One who owns all of the waters on his range has the right to the exclusive enjoyment of the license to graze these lands as against all others who did not develop other waters upon the same. Yates v. White, 1925-NMSC-012, 30 N.M. 420, 235 P. 437; Hill v. Winkler, 1915-NMSC-077, 21 N.M. 5, 151 P. 1014, explained in Vanderford v. Wagner, 1918-NMSC-099, 24 N.M. 467, 174 P. 426, distinguished in Johnson v. Hickel, 1923-NMSC-002, 28 N.M. 349, 212 P. 338.

Law reviews. — For article, "Attachment in New Mexico - Part II," see 2 Nat. Resources J. 75 (1962).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 63A Am. Jur. 2d Public Lands §§ 22 to 36.

Trespassing or intruding livestock, liability for personal injury or death caused by, 49 A.L.R.4th 710.

73A C.J.S. Public Lands §§ 19 to 23.