OPINION OF THE COURT.
ROBERTS, J.[1] (after stating the facts as above). Appellants have filed assignments of error setting forth 13 alleged errors. The brief filed does not undertake to discuss each of the assignments, and the points therein presented are not arranged in logical order. We think, however, appellants present one point which is decisive of the case and which should be considered by the court. It is to the effect that the trial court erred in granting appellees injunctive -relief because, under the facts developed by the evidence, appellees were not entitled to the inujncfion or the damages awarded.
By Act Cong. Feb. 25, 1885, c. 149, entitled “An act to prevent unlawful occupancy of the public lands” (23 Stat. at Large, 321), the assertion of a right to the exclusive use and occupancy of any part of the public lands of the United States in any state or territory, without claim, color, of title, or asserted right, was declared unlawful and prohibited. This act also prevented the inclosure of public lands. In the ease' of Camfield v. United States, 167 U. S. 518, 17 Sup. Ct. 864, 42 L. Ed. 260, it was held that the owner of the odd-numbered sections in a township could not, by constructing a fence upon his lands, inclose the even-numbered government sections.
Equity regards substance and not form, or, as the principle is expressed in the shape of an equitable maxim, “Equity looks through forms to substance.” If the owner of the odd-numbered sections in a township, 1he even-numbered being government domain, and none o-f the land being fenced, can procure the aid of the court of equity to restrain others from pasturing their animals upon said even-numbered sections, or driving their stock across any portion of such odd-numbered sections, he would be able to accomplish indirectly, and by the aid of a court of equity, that which he could not do directly, viz. maintain the exclusive use and occupancy of that part of the public domain so situated. That appellees expect to pasture, not only the odd-numbered sections in the two townships which they own, but the government lands, is apparent, for it would be physically impossible for them to utilize their own lands, unfenced as they are, without also grazing the government'lands. The injunction, if sustainable, in its practical effSct is every whit as effective as a fence surrounding the entire tract would be, in excluding appellants from using the government land in the townships, and the same nostrum could be readily applied to all others who might seek to graze their animals upon such government land. In other words, the court fences the land for appellees by its writ of injunction, and incloses for them a large area of government domain, and does it much more efficiently than the parties did in the Camfield case. There Camfield erected swinging gates at each section line in the fence to afford access to so much of the public domain as was inclosed; while here no means of ingress and egress are afforded, save by a few isolated roads which mayor may not touch any of the government sections.
Appellants argue that a denial of the writ of injunction herein would be the taking of private property without just compensation, but this argument is without merit. By following the local statute of the state, hereinafter referred to, appellees can prohibit appellants from depasturing the lands owned by them, if not. precluded by other equitable consideration, but they cannot prohibit appellants or others desirifig to pasture-the government even-numbered sections from crossing with their flocks from one government section to another, where such sections corner, or in some reasonable manner. In the case of Buford v. Houtz, 133 U. S. 320, 10 Sup. Ct. 305, 33 L. Ed. 618, an identical question was brought before the Supreme Court of the United States upon appeal from the Supreme Court of the state of Utah. 5 Utah 591, 18 Pac. 633. In that case Buford and others were the owners of the railroad odd-numbered sections in a given locality in the state of' Utah. Houtz and others were raisers of sheep, and pastured their sheep upon the public domain and other lands in the townships within which Buford and others owned such odd-numbered sections. There, as here, the owners of the odd-numbered sections sought to obtain a writ of injunction prohibiting the owners of the sheep from depasturing their lands. The court held that there was an implied license growing out of the custom of nearly 100 years that the public lands of the United States should be free to the people who seek to use them, where they are left unfenced, and no act of the government forbids their use. The court denied their right to injunctive relief, The Utah court, in discussing the question, said:
“If this injunction were granted, it would become obligatory for all settlers passing through the country, and all herdsmen, to be constantly hunting the corners and boundaries of the plaintiff’s lands, none of which lands are fenced. It would be a source of great vexation and annoyance' to the settlers and herdsmen, and virtually prevent their use of the public lands. The plaintiffs have had the privilege of passing over government lands in reaching their lands, and have had the privilege of pasturing on government lands in connection with their own. As long as they do not fence their lands, they ought not to complain that other people use their lands in the manner they had used the public lands.”
The state of Utah, at the time this question was raised, had a fencing statute somewhat similar to our sections 2340 to 2345, inclusive. In a late case (McKay v. Uinta Developing Co., 219 Fed. 116, 135 C. C. A. 18), the Circuit Court of Appeals, Eighth Circuit, in an opinion by Judge Hook, held that the act of February 23, 1885, above referred to, prohibits every method that works a practical denial of access to and passage over the public lands, either by person or stock, and that the owner of a large quantity of railroad government lands, • comprising the odd-numbered sections, the alternate sections being public lands, the entire tract being unin-closed, cannot by a warning notice deprive a stock owner of a reasonable right of way for his stock across the tract, or make him a trespasser and liable in damages, because, in crossing, his stock necessarily passes over and consumes grass from some of the land of the private owner.
[2] In this state we have another statute (section 39, Code 1915) which reads as follows:
“It shall he unlawful for any person, persons, company or corporation, or their or either of their agents or employees having charge of any drove of bovine cattle, horses, sheep, goats or other animals to permit or allow such herd of animals to go upon the lands of others in this state for the purpose of grazing or watering upon any waters upon such lands, without the permission of the owner or legal claimant, or his or their agent. The provisions of this section shall apply not only to titled lands in this state, hut to any lands upon which any person may have a valid existing filing under the laws of the United States, or any lands which may be leased by any person from the state of New Mexico.
“Any person, persons, company o.r corporation who may claim the benefits of the protection of this section, shall carefully and conspicuously mark the line or lines of his or its lands, so that such mark may be easily seen by persons handling such droves, flocks or herds of animal's, and shall post a notice upon such land conspicuously, warning against trespassing thereon,; or shall serve personal written notice giving description of such land by government surveys or by metes and bounds.”
Appellees did not allege or show a compliance witb tbis section. Had they complied witb its provisions they would doubtless be able to prevent appellants from depasturing tbeir lands, save as it might become necessary in crossing from one section of the government domain to another by the most accessible route. Under this section it is possible for the owner of private lands to prevent the depasturing of the same by others by conspieulously marking the boundaries of the same, so that those in charge of flocks or herds of animals will be able to know where the lines are, and prevent trespassing thereon by animals under their charge. After marking the boundaries as provided by the statute, they are able to prevent trespassing therein by either of two methods: (1) by posting notices on the land in a conspicuous place warning against trespass; or (2) by serving a written notice upon parties sought to be bound not to trespass upon such lands. Appellees did not comply with this statute. On their behalf, however, it is contended that neither the fencing statute nor said section 39 justifies a willful trespass, and rely upon the case of Light v. United States, 220 U. S. 523, 31 Sup. Ct. 485, 55 L. Ed. 570. That was a suit instituted by the government of the United States to enjoin Light from trespassing upon a forest reserve in the state of Colorado. There is evidence showing that Light knew the boundaries of the forest reserve, and deliberately turned out his cattle so that they would go upon the same, and he admitted that he intended for his cattle to go upon such reservation, and proposed to continue to permit them to do so.
The Light case had no application to the present case, because of said section 39 of our Code, and the situation of the land. Under the implied license from the government, appellants had a right to graze their sheep and cattle upon the even-numbered sections of public domain within the two townships. Appellees could not lawfully exclude them from exercising such right. Hill v. Winkler, 21 N. M. 5, 151 Pac. 1014. So long as the government of the United States extended to them this .implied privilege, they were as much entitled to pasture the, government sections as were appellees to pasture their own lands. They had no means of knowing where the section lines were, and which sections belonged to appellees, without having the lands surveyed and the lines marked. In the Light case, the defendant knew the boundary of the reserve, and purposely grazed his cattle thereon. No statute similar to our section 39 was asserted to exist in Colorado, and such a statute might have no application, were it shown that a party was familiar with the boundaries of private property, and deliberately depastured the same with his animals.
In New Mexico, as in the other states, comprising vast areas of government land where there are but small portions of the land owned in private ownership, it has been the custom always to turn animals loose for grazing purposes, and the owner of the same has not been held liable for the depasturing by such animals of privately owned lands, except where such liability has been created by fencing statutes, or otherwise by statute. Clearly, if appellants were the owners of cattle, and had turned the same loose upon the public domain, and such animals had wandered upon appellee’s lands, they would not be entitled to damages for the depasturing of their lands by such cattle, unless they were able to show that their lands had been fenced as required by the statute.
Appelle.es argue, however, that a different rule prevails as to sheep which are always under the direct control of a herder or caporal; that in the case of sheep, where they go upon private lands and depasture the same, a willful trespass is necessarily presumed because such sheep are under the control of such herder or ca-poral. This argument, followed to its logical conclusion, would result in repeated damage cases by owners of private lands unfenced and without mark or monument to indicate the fact that they were under private ownership, where they have been depastured by the sheep of another. In various parts of the state where the government domain is utilized for the pasturing of sheep, there are isolated tracts owned by private individuals, unfenced and unmarked. If Ave should adopt the rule contended for by appellees the sheepmen would be required to be vigilant, indeed, in keeping an accurate record of the entries upon the public domain, and what lands were held in private ownership, and the services of a surveyor would be almost constantly in demand by each individual sheep raiser in order that he might escape liability in damages for trespassing upon such private lands.
Section 39, Code 1915, was enacted, we believe, for the purpose of affording protection to the owners of private lands against flocks of sheep and other animals under herd, and that only by a compliance with such section is the owner of private lands able to secure redress in damages for the depasturing of the same, by flocks under herd, unless such a complainant is able to show knowledge on the part of the herder of the lines of such privately owned lands. In other words, unless the owner of private lands unfenced marks the same as required by such section, and posts warning notices thereon, or serves a written notice as therein provided for, or shows knowledge on the part of the herder as stated, he cannot maintain 'an action to recover damages for the depasturing of the same by another, nor can he maintain a suit in injunction to prevent such depasturing.
Another question is presented by appellants to the effect that a court of equity should treat appellees herein as bound by the contract made by Fernandez Company with appellants, and should award them no relief. Under the doctrine found in Fletcher’s Ency. on Corporations, vol. 1, § 42, and cases therein cited, it might be that the court should so treat appellees. In the case of Linn & Lane Timber Co. v. United States, 196 Fed. 593, 116 C. C. A. 267, will be found an interesting discussion of the same question. In view of our conclusion, however, it is not necessary to consider this point.
For the reasons stated, the judgment of the district court will be reversed, and the cause remanded, with instructions to enter judgment for appellants, and to dismiss appellees’ complaint; and-it is so ordered.
HaNna, C. J., and Parker," J., concur.