OPINION OF THE COURT Appellant was convicted before a justice of the peace and again in the district court of Colfax county of a violation of sections 3516 and 3517 of the New Mexico Statutes annotated, Code of 1915, authorizing the owner or lessee of mining property desiring to operate the same and to prevent trespassers from entering thereon to post notices warning all persons from entering upon the said land without the consent of the owner or lessee, and making it thereafter unlawful for any person to enter upon said premises without such permission. The complaint alleged that the Phelps-Dodge Corporation was operating and prosecuting mining upon the property, had duly posted the same, and that the appellant had unlawfully entered and trespassed thereon without permission from the Phelps-Dodge Corporation.
At the close of the state's case, appellant submitted a motion for a directed verdict and here complains of the overruling of that motion. At that time there was testimony showing, or tending to show, the following facts: The property in question was owned by the Stag Canyon Fuel Company and operated by and under lease to the Phelps-Dodge Corporation. On the property in question was situated the mining camp of Dawson, containing a large number of dwelling houses, a store, bank, schoolhouse, post office, railroad station, hospital, and with streets as in the ordinary town, all of which property was owned and leased as above stated. All of the dwelling houses in the camp were occupied by the employees of the Phelps-Dodge Corporation, as tenants; the streets being necessarily used in going from place to place in the camp, in going to their work, and to reach the outside world. It was not the custom to require traveling men, farmers trading at the store, nor persons coming to buy coal from the corporation to obtain special permission to enter the property; but business *Page 474 men from Raton and other points were required to register with the clerk. Evidence was received of the posting of notices in the name of the Stag Canyon Fuel Company. To this appellant objected on the ground of variance, and also upon the ground that, under the statute, it is only the party operating the property who may post it. There was evidence that appellant had knowledge of these notices. There was also evidence of posting in the name of the Phelps-Dodge Corporation, but none of knowledge thereof by appellant. Some time before his arrest, appellant appeared and made application for a permit to market or peddle grapes, which request was denied. He thereafter obtained orders for grapes from some of the tenants of the company houses, and, while proceeding to deliver the grapes thus ordered, was arrested on the principal street of the camp.
[1] 1. Upon this record appellant contends that he was entitled to a direct verdict, citing and relying upon Commonwealth v. Burford, 225 Pa. 93, 73 A. 1064. In that case it was held that a statute somewhat similar to ours did not apply under a state of facts quite similar to the facts under consideration. The court reasoned that the lease of a house entirely surrounded by the property of the lessor, situated upon the streets only by means of which the tenant could have ingress and egress to and from the demised house, implied the right to free use of such streets in the absence of any provisions in the lease limiting his right to the use thereof; and, further, since the right to use the streets was appurtenant to the house, it included not only the right of the lessee to use it, but that it might be used by his family and those who, with his permission, visited his home for any lawful purpose.
It is suggested by appellee that the Burford Case was modified by the more recent case of Harris v. Keystone Coal Coke Co.,255 Pa. 372, 100 A. 130, but in the latter it appears that there had been inserted in the lease controlling reservations regarding the use of the streets. Aside from this, learned counsel for the state do not question the soundness of the *Page 475 doctrine or decision of the Burford Case, but confine their argument to an attempt to establish controlling distinctions. We may, therefore, safely follow that decision unless some such distinction is shown.
It is pointed out that there was no evidence, as there was in the Burford Case, to show that the employees were paying rent for the company houses occupied by them. But this point cannot be controlling. The necessity for ingress and egress arises from the occupancy, not from the payment of rent. The occupancy as tenants is shown. The right to the use of the streets follows. Any limitation or restriction on that right cannot be presumed, but should have been proven.
It is contended there was no evidence to show that appellant was delivering grapes to any one, or filling the orders of any one who lived upon the premises. The testimony to this point was given by a state's witness on cross-examination. The witness stated as a fact; "He was starting to unload his load, and he had orders for his carload of grapes in Dawson." On further cross-examination it appeared, it is true, that this fact was the conclusion of the witness, but cogent reasons were given by him on which he based the conclusion. In the absence of any objection, and being undisputed, it stands as a part of the state's case.
In the Burford Case, the defendant was delivering "necessary family supplies", while in the present case he was delivering wine grapes. Counsel point out this difference, but do not indicate what bearing it should have on the result. We do not recognize any distinction in principle here.
[2] 2, 3. It is contended that appellant, in going upon the street where he was arrested, could not have relied upon any permission or invitation from the company's tenants because of the fact that he had applied for permission to market or peddle grapes and had been refused, and because it was shown he had knowledge of the posted notices. It is to be observed that the notices of which appellant was shown to *Page 476 have knowledge were those of the Stag Canyon Fuel Company. The introduction of these notices was objected to on the two grounds above stated, and error has been assigned on the ruling. We think that both objections were good. Under a complaint charging appellant with a misdemeanor for disregarding the notices of the Phelps-Dodge Corporation, it was clearly a variance to introduce notices of the Stag Canyon Fuel Company.
[3] Again, it seems plain that the statute contemplates posting and its consequences only in case the property is being operated, and then by the party operating, whether owner or lessee. Hence these notices of which appellant had knowledge were improperly in the case, and we have left for consideration only the fact that appellant applied for permission to market or peddle grapes. Standing alone, this fact does not exclude the theory of reliance by appellant on lawful invitation to the premises.
We conclude that the state rested without having established a prima facie case. Appellant was entitled to a directed verdict. To refuse it was error.
The judgment must therefore be reversed and remanded, with direction to discharge the accused, and it is so ordered.
PARKER, C.J., and BICKLEY, J., concur.
ON REHEARING