235 P. 437 | N.M. | 1925
[1] 1. In the first place, it may be said that 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: Buford v. Houtz,
[2] 2. This license is subject to the police power of the state by way of reasonable regulation of its enjoyment. Omaechevarria v. Idaho,
[3] 3. At this point, however, the federal act, supra, intervenes. That act was designed to remedy an evil which had grown up in the West of monopolizing the public domain by large raisers of livestock by means of fencing large tracts, and by means of intimidation, thus excluding the public generally from the privileges of the license and from settlement on the public domain. The act makes all such fencing and such intimidation illegal, and provides for injunction against the maintenance of such fences, and for punishment of offenders against the act. If the situation had been reversed; that is, if the plaintiff had agreed *423
with the defendant to take and pasture his cattle within the illegal inclosure, it is clear, upon authority, that the contract would have been illegal and unenforceable. Garst v. Love,
A procedural question presents itself as to whether a motion for judgment non obstante veredicto was the proper remedy of the defendant, rather than a motion for new trial; but the court and the parties treated the motion as really the motion for an instructed verdict made before submission to the jury, and, as no mention of the question is made in the brief, it will not be considered here.
It follows that the judgment of the court below was correct and should be affirmed, and the cause should be remanded, with directions to proceed accordingly; and it is so ordered.
PARKER, C.J., concurs. *424