IAL 01262010.

• Court: New Mexico

New Mexico Attorney General Opinions 2010. IAL 01262010. IAL 01262010Honorable Mary Kay Papen State Senator 904 Conway Avenue Las Cruces, NM 88005Re:Opinion Request--Responsibility for Maintaining Fences along Rail Runner RailroadDear Senator Papen: You have requested our opinion on several questions relating to a railroad's legal responsibility to erect and maintain fences along its railway track. QUESTIONS:

1. Who is responsible for erecting the fence, fence repairs and maintenance along the Rail Runner railroad?

2. What is the time frame for completion of the fence along the line and for any repairs needed?

3. What agency enforces the repairs?

4. What penalty is imposed for failure to make repairs and what is the State's responsibility to enforce compliance with the statute?

5. Who is liable to the owner for any livestock that may be injured or killed?

6. Who is responsible for attorney fees should legal proceedings be commenced by an owner whose livestock is injured or killed?

ANSWERS:

1. The New Mexico Department of Transportation, as the owner of the Rail Runner railroad, is responsible for erecting the fence and the making of fence repairs and maintenance as provided by law.

2. Initially, the time frame for erection of a fence along a railroad line is six months from the time the railroad line is open for service.No specific time frame for maintenance of fences is specified.Therefore, a "reasonableness" standard would apply.

3. There is no designated agency responsible for "enforcing" required repairs.The responsibility for compliance lies with the railroad.

4. There is no specified "penalty," as such, although private suit may be brought by the livestock owner to recover all damages resulting from injury or death caused to livestock.

5. The railroad would be liable for damages as provided by law.

6. The railroad would be responsible for paying attorney's fees, as permitted by law, should legal proceedings be commenced by an owner whose livestock are injured or killed.

ANALYSIS: The Livestock Code, Chapter 77, Articles 2 through 18 NMSA1978, contains these provisions at Sections 77-16-16 to -18 regarding the duty of railroads to erect and maintain fences in order to prevent cattle from getting onto the railroad tracks.The statute most pertinent to the questions posed is Section 77-16-16, which provides:

Every railroad

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