Stuart White v. City of Watertown

2019 WI 9

SUPREME COURT OF WISCONSIN
CASE NO.: 2016AP2259
COMPLETE TITLE: Dr. Stuart White and Janet White,
Plaintiffs-Respondents,
v.
City of Watertown,
Defendant-Appellant-Petitioner,
Township of Watertown and Township of Watertown
Chairman Richard Gimbler,
Defendants.

REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 378 Wis. 2d 592, 904 N.W.2d 374
PDC No: 2017 WI App 78 - Published

OPINION FILED: January 31, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: October 10, 2018

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Jefferson
JUDGE: Jennifer L. Weston

JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:

ATTORNEYS:

For the defendant-appellant-petitioner, there were briefs
filed by Matthew L. Granitz, Joseph M. Wirth, and Piper, Schmidt
& Wirth, Milwaukee. There was an oral argument by Joseph M.
Wirth.

For the plaintiffs-respondents, there was a brief filed by
Scott B. Rasmussen and Rasmussen Law Offices, Beaver Dam. There
was an oral argument by Scott B. Rasmussen.
 2019 WI 9
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2016AP2259
(L.C. No. 2016CV29)

STATE OF WISCONSIN : IN SUPREME COURT

Dr. Stuart White and Janet White,

Plaintiffs-Respondents,

v.
FILED
City of Watertown,
JAN 31, 2019
Defendant-Appellant-Petitioner,
Sheila T. Reiff
Township of Watertown and Township of Watertown Clerk of Supreme Court
Chairman

Richard Gimbler,

Defendants.

REVIEW of a decision of the Court of Appeals. Affirmed.

¶1 DANIEL KELLY, J. Some adjoining landowners in the

City of Watertown have a long-standing dispute over who must pay

to construct and maintain partition fencing between their

properties. This case, however, is not about the neighbors'

dispute, at least not directly. It is instead about the

mechanism by which that dispute is addressed. The Whites say

the City of Watertown is responsible for conducting a
statutorily-prescribed procedure for resolving fence-related
 No. 2016AP2259

disputes. The City of Watertown, on the other hand, says the

statutes authorize only towns——not cities——to conduct such

proceedings. For the reasons we describe below, we agree with

the Whites and so affirm the court of appeals.1

I. BACKGROUND

¶2 Dr. Stuart and Janet White (the "Whites") own property

in the City of Watertown (the "City") that they (and prior

owners) have continuously farmed or grazed since 1839. Farms

previously surrounded the Whites' property, but over time the

farms became residential neighborhoods. The Whites, however,

continue to graze their property, which means they——and the

adjoining landowners——must keep and maintain partition fences

between their respective properties: "[T]he respective owners

of adjoining lands when the lands of one of such owners is used

and occupied for farming or grazing purposes, shall keep and

maintain partition fences between their own and the adjoining

premises . . . ." Wis. Stat. § 90.03 (2015-16).2 The statute

assigns responsibility for the fence to all adjoining property
owners, each of whom must bear maintenance expenses "in equal

shares." Id.

1
This is a review of a published court of appeals opinion,
White v. City of Watertown, 2017 WI App 78, 378 Wis. 2d 592, 904
N.W.2d 374, which affirmed the Jefferson County Circuit Court,
the Honorable Jennifer L. Weston, presiding.
2
All subsequent references to the Wisconsin Statutes are to the 2015-16 version unless
otherwise indicated.

2
 No. 2016AP2259

¶3 Since at least 2010, the Whites and their neighbors

have disagreed over their financial obligations for the

partition fence between their properties. The legislature

anticipated that such disagreements might arise from time to

time, so Wisconsin Statutes Chapter 90 ("Chapter 90") contains a

detailed procedure for quantifying those costs and allocating

them amongst the adjoining owners. We will refer to these

provisions as the "Enforcement Procedures," which include Wis.

Stat. §§ 90.10-90.12. The Whites have asked the City, on more

than one occasion, to engage Chapter 90's Enforcement Procedures

to determine and allocate the cost of constructing and

maintaining the fencing. Pursuant to several of the Whites'

requests, a city alderman went to the Whites' property to view

the partition fences. However, because the City does not

believe Chapter 90 allows cities to authoritatively determine

and allocate fencing costs, the City's efforts never went beyond

physically viewing the Whites' fencing.

¶4 The Whites and the City reached an impasse over their
divergent readings of Chapter 90, and eventually the city

attorney invited the Whites to test their interpretation in

court. They obliged. Their complaint sought: (1) a

declaration of rights and duties under Chapter 90; and (2) a

3
 No. 2016AP2259

writ of mandamus or injunctive relief.3 Specifically, the Whites

say they "need to have their fences repaired and new fenc[ing]

put in," and that "[t]here will always be a need in the future

to maintain said fencing." They asserted that Chapter 90 gives

them the right "to have the appropriate governmental body under

Chapter 90, Wis. Stats, partition fencing, and to apportion the

cost of erecting and maintaining fences on the boundaries of the

plaintiffs' land." Based on its prior responses, the Whites

believe the City will refuse to administer the Enforcement

Procedures without an authoritative declaration of rights.

¶5 The City moved to dismiss, arguing (inter alia) that

the Whites failed to state a cause of action because Chapter 90

does not authorize cities to administer the Enforcement

Procedures. The circuit court denied the City's motion and

simultaneously granted the Whites' requested declaratory relief.4

It held that "all provisions of Chapter 90 apply to the City,

despite a failure of specific reference therein to 'cities.'"

3
In addition to the City of Watertown, the complaint also
named City of Watertown Mayor John David, City of Watertown
Alderman Kenneth Berg, the Town of Watertown, and Town of
Watertown Chairman Richard Gimbler as defendants. The circuit
court dismissed these parties for various reasons, which
dismissals the Whites do not challenge.
4
The circuit court dismissed the Whites' request for relief
in the form of mandamus or an injunction, holding that the
case's posture was not ripe for such relief. The Whites do not
challenge that determination.

4
 No. 2016AP2259

¶6 The City appealed the circuit court's grant of

declaratory relief and the court of appeals affirmed.5 Like the

circuit court, the court of appeals' analysis centered on the

perceived ambiguity of Chapter 90's apparently exclusive

references to towns when describing the Enforcement Procedures.

After consulting legislative history, however, the court of

appeals concluded that Chapter 90 authorizes cities as well as

towns to conduct those proceedings. White v. City of Watertown,

2017 WI App 78, ¶¶2-4, 378 Wis. 2d 592, 904 N.W.2d 374.

¶7 We granted the City's petition for review and now

conclude that Chapter 90 unambiguously authorizes cities to

administer the Enforcement Procedures. Consequently, we affirm

the court of appeals, but for different reasons.

II. STANDARD OF REVIEW

¶8 The Whites' request for a declaration of rights

pursuant to the terms of Chapter 90 presents a question of law,

which we review de novo. See CED Props., LLC v. City of

Oshkosh, 2018 WI 24, ¶20, 380 Wis. 2d 399, 909 N.W.2d 136.
III. ANALYSIS

¶9 The City urges us to declare that Chapter 90 does not

authorize cities to administer the Enforcement Procedures

5
The City did not argue that the circuit court erred in
denying any of the procedural grounds for dismissal, and so we
consider them abandoned. See, e.g., A.O. Smith Corp. v.
Allstate Ins. Cos., 222 Wis. 2d 475, 491, 588 N.W.2d 285 (Ct.
App. 1998) ("[A]n issue raised in the trial court, but not
raised on appeal, is deemed abandoned.").

5
 No. 2016AP2259

because the constitutive statutes explicitly empower only towns

to do so while not mentioning cities at all. Consequently, the

City argues, we would be unfaithful to the statutory text if we

nonetheless concluded that cities, too, have authority to

administer the Enforcement Procedures. It says we could not

reach such a conclusion without adding new text to Chapter 90

for the express purpose of enlarging its remit.

¶10 The principle behind the City's argument is well-

received——it is not for us to change statutory text. Instead,

our responsibility is to ascertain and apply the plain meaning

of the statutes as adopted by the legislature. To do so, we

focus on their text, context, and structure. "[S]tatutory

interpretation 'begins with the language of the statute[,]'" and

we give that language its "common, ordinary, and accepted

meaning[.]" State ex rel. Kalal v. Circuit Court for Dane Cty.,

2004 WI 58, ¶¶45-46, 271 Wis. 2d 633, 681 N.W.2d 110 ("Context

is important to meaning. So, too, is the structure of the

statute in which the operative language appears. Therefore,
statutory language is interpreted in the context in which it is

used; not in isolation but as part of a whole; in relation to

the language of surrounding or closely-related

statutes . . . ."). In performing this analysis, we carefully

avoid ascribing an unreasonable or absurd meaning to the text.

Id., ¶46 ("[S]tatutory language is interpreted . . . reasonably,

to avoid absurd or unreasonable results."). We may also look to

the statute's history where, as here, there has been a
significant revision to the language in which we are interested.
6
 No. 2016AP2259

Cty. of Dane v. LIRC, 2009 WI 9, ¶27, 315 Wis. 2d 293, 759

N.W.2d 571 ("'A review of statutory history is part of a plain

meaning analysis' because it is part of the context in which we

interpret statutory terms." (citation omitted)). That history

"encompasses the previously enacted and repealed provisions of a

statute." Richards v. Badger Mut. Ins. Co., 2008 WI 52, ¶22,

309 Wis. 2d 541, 749 N.W.2d 581. "By analyzing the changes the

legislature has made over the course of several years, we may be

assisted in arriving at the meaning of a statute." Id. If we

determine the statute's plain meaning through this methodology,

we go no further. Kalal, 271 Wis. 2d 633, ¶45 ("If the meaning

of the statute is plain, we ordinarily stop the inquiry."

(internal marks and citation omitted)). See generally Daniel R.

Suhr, Interpreting Wisconsin Statutes, 100 Marq. L. Rev. 969

(2017).

¶11 The City's argument, therefore, requires that we

review the statutes relevant to the Enforcement Procedures to

determine whether their plain meaning empowers cities, as well
as towns, to resolve fencing disputes.6 The parties tell us we

may find the answer in Wis. Stat. §§ 90.01 (Fence viewers),

90.03 (Partition fences; when required), 90.05 (How partition

made), 90.07 (Division of partition fence), 90.10 (Compulsory

repair of fence), 90.11 (Cost of repairs), and 90.12

6
The purpose of our review is, however, very limited. We
express no opinion on whether the Whites have complied with the
requirements of Chapter 90 or, more specifically, the procedural
aspects of the Enforcement Proceedings.

7
 No. 2016AP2259

(Apportionment of cost of fence). We will consider each of

these statutes with a specific focus on what they say about the

type of municipality to which they apply. Following that

analysis, we will address an additional statutory provision that

neither party mentioned, but which is nonetheless critical to

the question before us.

¶12 The parties do not contest the necessity for partition

fencing between the Whites' land and adjoining properties. We

have no doubt of its necessity because the statutory command is

unequivocal: "[T]he respective owners of adjoining lands when

the lands of one of such owners is used and occupied for farming

or grazing purposes, shall keep and maintain partition fences

between their own and the adjoining premises in equal shares so

long as either party continues to so occupy the lands . . . ."

Wis. Stat. § 90.03. Nothing in this statute suggests its

requirements apply only when the land is located outside of city

limits. Because the Whites graze their property, we take it as

established that partition fences must separate their land from
adjoining properties.

¶13 However, we encounter municipality-specific statutory

references almost immediately upon commencing our inquiry into

the landowners' respective responsibilities for the fencing.

Although all property owners along the fence line must share in

its cost, Chapter 90 contains a mechanism for apportioning the

responsibility for actually building and maintaining the fence.

This partitioning of responsibility can occur either before the

8
 No. 2016AP2259

fence's construction (Wis. Stat. § 90.05), or afterwards (Wis.

Stat. § 90.07). The pre-construction statute provides that

[e]very partition of a fence or of the line upon which
partition fences are to be built between owners of
adjoining lands, after being recorded in the town
clerk's office, obligates the owners, their heirs and
assigns to build and maintain the fence in accordance
with the partition, if any of the following conditions
is met: . . . The partition is made by fence viewers
in the manner provided under this chapter and is in
writing under their hands.
§ 90.05(1)(a)2. (emphasis added). The post-construction statute
is, seemingly, similarly specific with respect to the type of

municipality in which the construction and maintenance

obligations may arise. A property owner who wishes to partition

responsibility for a pre-existing fence may apply "to 2 or more

fence viewers of the town where the lands lie or to 2 or more

fence viewers of 2 towns, if the lands lie in 2 towns . . . ."

§ 90.07(2) (emphasis added). Once the fence viewers assign

responsibility to the respective owners, they "shall file such

decision in the town clerk's office, who shall record the same."

Id. (emphasis added).
¶14 As we turn to the statutes comprising the Enforcement

Procedures, we continue encountering municipality-specific

references. The parties identify three circumstances in which

Chapter 90 allows a landowner to engage these proceedings. In

each of them, the City says, the applicable statute assigns

enforcement responsibilities to towns, not cities. The first

circumstance involves a landowner who has failed in his
responsibility to maintain or repair a partition fence. The

9
 No. 2016AP2259

applicable statute provides that, "[i]f any person neglects to

repair or rebuild any partition fence that by law that person is

required to maintain, the aggrieved party may complain to 2 or

more fence viewers of the town, who, after giving notice as

provided in s. 90.07, shall examine the fence." Wis. Stat.

§ 90.10 (emphasis added). The second circumstance arises when a

landowner shoulders the burden of building, repairing, or

rebuilding a partition fence for which an adjoining landowner is

actually responsible. The Enforcement Procedures allow the

landowner to recover his fence-related expenses from the

responsible owner, a process that begins with a complaint to the

fence viewers:

Whenever any owner or occupant of land has built,
repaired or rebuilt any fence, pursuant to the
provisions of this chapter, that the adjoining owner
or occupant has been lawfully directed by fence
viewers to build, repair or rebuild but has failed to
do within the time prescribed, the owner or occupant
who built, repaired or rebuilt the fence may complain
to any 2 or more fence viewers of the town.
Wis. Stat. § 90.11(1)(a) (emphasis added). The final

circumstance identified by the parties involves landowners who

refuse to contribute to the maintenance of a partition fence

built at the expense of an adjoining landowner:

When, in any controversy that may arise between
occupants of adjoining lands as to their respective
rights in any partition fence, it shall appear to the
fence viewers that either of the occupants had, before
any complaint made to them, voluntarily erected the
whole fence, or more than that occupant's just share
of the same, or otherwise become proprietor thereof,
the other occupant shall pay for so much as may be
assigned to him or her to repair or maintain; the just

10
 No. 2016AP2259

value thereof which the other occupant ought to pay
shall be ascertained by proceeding as prescribed in s.
90.11.
Wis. Stat. § 90.12. Although this provision does not have a

municipality-specific reference, it directs the complaining

landowner back to § 90.11, which requires a complaint to "any 2

or more fence viewers of the town." § 90.11(1)(a).

¶15 Out of all the Chapter 90 provisions cited by the

parties, only one mentions municipalities other than towns. But

it is a provision without which neither of the partition
statutes nor any of the Enforcement Procedure statutes could

operate. In each of these statutes, the officials through whom

the municipality acts are "fence viewers." The corps of these

officials is established by Wis. Stat. § 90.01: "The

supervisors in their respective towns, the alderpersons of

cities in their respective aldermanic districts, and the

trustees of villages in their respective villages shall be fence

viewers."

¶16 Taking these statutes together, the City concludes it

is without authority to resolve the Whites' dispute with their
neighbors. The City believes that Chapter 90 creates

obligations amongst neighboring landowners that can arise (or be

enforced) only in towns. So it maintains that the Whites can

have no dispute with their neighbors cognizable under Chapter 90

because their property all lies within Watertown's city limits,

not that of a town. And, it argues, Chapter 90 gives the City

no authority to enforce those obligations because each of the
Enforcement Procedure statutes requires the proceeding to

11
 No. 2016AP2259

commence with a complaint to "fence viewers of the town." The

City is nonplussed by the fact that Chapter 90 allows an

alderperson to serve as a fence viewer. This, it says, simply

expands the corps of potential fence viewers; it does not confer

any substantive authority on cities to administer the

Enforcement Procedures.

¶17 In any event, the City says, even if the statutes

allowed it to resolve the dispute between the Whites and their

neighbors, their ultimate remedy under Chapter 90 is

administered through a town, not a city. When an adjoining

landowner fails to pay the amount directed by the fence viewers'

certificate, the complaining owner files the certificate with

the "clerk of the town" in which the adjoining owner's property

is located.7 The clerk then "issue[s] a warrant for the amount

of the listed expenses and fees upon the town treasurer payable

to the person to whom the certificate was executed and

delivered." Wis. Stat. § 90.11(2)(a). But there is no

statutory authority for a city clerk to issue a warrant upon a
city treasurer, the City says, so Chapter 90 gives the Whites no

remedy even if it had the authority to decide the fencing

dispute.

7
"The complaining party may file the certificate executed
and delivered to him or her under sub. (1) (b) with the clerk of
the town in which the lands charged with the expense and fees
set forth in the certificate are located." Wis. Stat.
§ 90.11(2)(a).

12
 No. 2016AP2259

¶18 The City's position is plausible, but ultimately

unsustainable. There is a discordant note in its reasoning, a

harrying insistence that some of the statutory pieces are not

assembled quite right. The dissonance that finds no resolution

in the City's explanation relates to the corps of fence viewers.

The City says Wis. Stat. § 90.01 does nothing but identify who

may serve in that capacity. But its express terms do more than

that——they also identify where the fence viewers may perform

their official functions. That is, town supervisors are not

fence viewers wherever they may roam, they are fence viewers

only "in their respective towns[.]" § 90.01.8 The same is true

of village trustees——they are fence viewers "in their respective

villages[.]" Id. And city alderpersons are fence viewers only

"in their respective aldermanic districts[.]" Id.

¶19 That means an alderperson who crosses from his city to

a neighboring town loses the authority to perform the functions

of a fence viewer. Indeed, he loses that authority even if he

merely steps into an adjacent aldermanic district. So if
Chapter 90 does not authorize cities to administer the

Enforcement Procedures, then it left alderpersons with nothing

8
However, when a fence tracks the line dividing towns, or it lies partly in one town and
partly in another, alderpersons from the affected towns serve as fence viewers. Wis. Stat.
§ 90.14.

13
 No. 2016AP2259

to do even as it constituted them as fence viewers.9 By itself,

this is at least a curiosity, and perhaps at most an invitation

to read the chapter as ambiguous with respect to whether it

grants any fence-related authority to cities and villages. But

this statutory provision does not exist on its own, and when

placed amongst all the relevant statutes, the dissonance

suggested by the City's argument resolves to a harmonious whole.

¶20 The key to the proper understanding of Chapter 90 is

Wis. Stat. § 990.01, which instructs us on the proper

construction of statutes. The City noted, correctly, that this

statute directs that "[i]n the construction of Wisconsin laws

the words and phrases which follow shall be construed as

indicated unless such construction would produce a result

inconsistent with the manifest intent of the legislature[.]"

§ 990.01. But somehow both the City and the Whites overlooked

the statute's sixtieth rule, which tells us that "'Town' may be

construed to include cities, villages, wards or districts."

Wis. Stat. § 990.01(42). Because these rules are mandatory
("shall be construed") we must consider, when applying Chapter

9
Reading Wis. Stat. § 90.01 as creating an undifferentiated
pool of fence viewers who are free to enter towns across the
state to resolve fencing disputes would require that we overlook
the statute's geographical limitations. We try not to ignore
statutory text. See State ex rel. Kalal v. Circuit Court for
Dane Cty., 2004 WI 58, ¶46, 271 Wis. 2d 633, 681 N.W.2d 110
("Statutory language is read where possible to give reasonable
effect to every word, in order to avoid surplusage.").

14
 No. 2016AP2259

90, whether we should understand "town" to also mean "city." On

the answer to that question there can be no doubt.

¶21 Applying this rule to the question before us entirely

eliminates the ambiguity that the parties, the circuit court,

and the court of appeals all saw in Chapter 90. Each of the

statutes we have considered makes perfect sense when we read

"town" to include "city." For instance, the pre-construction

partition statute (Wis. Stat. § 90.05) works seamlessly within

city limits because where it says that the partition shall be

recorded with the "town clerk's office," we may read that

provision as the "city clerk's office." Similarly, we may read

the post-construction partition statute (Wis. Stat. § 90.07(2))

as applying within the "city where the lands lie." The same is

true of the statutes addressing the three circumstances in which

a landowner may wish to engage the Enforcement Procedures. In

the first——that is, when a landowner has failed in his

responsibility to maintain or repair a partition fence——an

adjoining landowner "may complain to 2 or more fence viewers of
the [city] town, who, after giving notice as provided in s.

90.07, shall examine the fence." Wis. Stat. § 90.10. The rule

allows the same substitution when a landowner performs fencing

duties that lawfully belong to another (the second

circumstance). Wis. Stat. § 90.11(1)(a) ("[T]he owner or

occupant who built, repaired or rebuilt the fence may complain

to any 2 or more fence viewers of the [city] town."). And

because the statute addressing the third circumstance
(landowners who refuse to contribute to the maintenance of a
15
 No. 2016AP2259

partition fence) refers back to § 90.11 for the proper

procedure, Wis. Stat. § 90.12 makes a city competent to resolve

the fencing dispute.

¶22 This also resolves the City's concern that, even if

cities could administer the Enforcement Procedures, they would

still lack the authority to provide the remedy described by

Chapter 90. With the help of Wis. Stat. § 990.01(42), a

complaining landowner in the City may file his certificate of

fence-related expenses with the city clerk instead of a town

clerk. Wis. Stat. § 90.11(1)(c). And whereas in the absence of

§ 990.01(42) only a town clerk would have the authority to issue

a warrant on the town treasurer in the amount of the landowner's

fencing expenses, this statutory rule of construction allows a

city clerk to issue such a warrant on the city treasurer.

§ 90.11(2)(a).

¶23 Finally, returning full circle to the statute that

alerted us to the dissonance and ambiguity in the City's

interpretive methodology (Wis. Stat. § 90.01), we can now
understand it as fitting neatly into the overall statutory

scheme. Indeed, in light of Wis. Stat. § 990.01(42), the

composition of the corps of fence viewers is not just logical,

it is necessary. Chapter 90's creation of enforceable fence-

related obligations in both cities and villages called forth a

need for fence viewers authorized to administer the Enforcement

Procedures in those types of municipalities. The legislature

satisfied that need by making alderpersons and trustees a part
of the corps. § 90.01. And whereas the geographical limitation
16
 No. 2016AP2259

on a fence viewer's authority is a disposable oddity in the

City's understanding of Chapter 90, in reality it creates a

logical relationship of accountability between the fence viewer

and the residents of the political subdivision he already

serves.10

¶24 We agree with the City's admonition that we must take

the statutory text as we find it, and we honor it with this

reading of the relevant statutes. Any other reading would break

faith with the principles we described in Kalal. 271

Wis. 2d 633, ¶¶45-46. We could not accept the City's argument

without turning significant portions of Wis. Stat. § 90.01 into

surplusage. Nor would our textual analysis have been complete

without referring to the statutorily-prescribed rule of

construction that instructs us to consider construing "town" to

also mean "city" or "village."11

10
We are mindful that Wis. Stat. § 990.01 says its rules of construction apply unless the
result would be "inconsistent with the manifest intent of the legislature[.]" And we are also
mindful that § 990.01(42) says that "'[t]own' may be construed to include cities, villages, wards
or districts." (Emphasis added.) Both of these passages indicate that this rule of construction,
like all rules of construction, must not be deployed mechanically. For the reasons we described,
supra, § 990.01(42) makes Chapter 90 applicable to cities as well as towns. So our holding is
limited to Chapter 90, and we express no opinion on what effect, if any, § 990.01(42) would
have on statutory provisions outside of Chapter 90.
11
We do not employ Wis. Stat. § 990.01(42) to interpret "town" to mean "city" or
"village" in Wis. Stat. § 90.01 (the statute creating the corps of fence viewers). The rule of
construction that allows that inclusive reading applies "unless such construction would produce a
result inconsistent with the manifest intent of the legislature." § 990.01.

In adopting Wis. Stat. § 90.01, the legislature carefully distinguished between the
officials of each type of municipality (town, city, and village) and limited the officials' service as
fence viewers to their respective jurisdictions. If we substituted "city" for "town" in this context,
we would contravene the legislature's clear limitation on a fence viewer's geographical authority.
(continued)
17
 No. 2016AP2259

¶25 Perhaps not incidentally, this also answers the City's

challenge that Chapter 90's history illustrates that it applies

only to towns.12 The City accurately observed that, originally,

our laws made only those who owned property in towns responsible

for maintaining partition fences. Consequently, the only fence

viewers were town officials. Wis. Rev. Stat. ch. 14, § 20

(1849) ("The overseers of highways in the several towns in this

state shall be fence viewers in their respective towns.").

Therefore, it is true that, in 1849, cities had no authority to

administer Enforcement Procedures. But then the City's

historical analysis hit a snag.

¶26 The City says that, in 1878, the legislature expanded

the corps of fence viewers to include city officials, but did

not simultaneously authorize cities or villages to enforce the

landowners' partition fence-related obligations. The City is

mistaken in two material respects. First, the legislature added

city and village officials to the corps of fence viewers in

1875, not 1878. And while doing so, the legislature did
simultaneously authorize city and village officials to enforce

the landowners' duties within their respective jurisdictions:

Section 1. Chapter seventeen (17), of the Revised
Statutes, entitled, "Of fences and fence-owners
[viewers]; of pounds and the impounding of cattle, and

12
We do not discuss statutory history here as an aid in determining the plain meaning of
the statutes in question, which we have already discovered without reference to it. Instead, we
address it out of respect for the City's argument and to demonstrate that there are no anomalies in
our analysis.

18
 No. 2016AP2259

the acts amendatory thereto,"[13] is hereby amended so
as to read as follows: Section twenty-five (25). The
provisions of this chapter and of the acts amendatory
thereto, shall extend to and include all out-lots
occupied and used for agricultural purposes, and
embraced in the plat of any incorporated city or
village within this state, and the aldermen of the
respective wards of such city, and the trustees of any
such village, are hereby empowered, and it is hereby
made their duty, to discharge the duties imposed upon
fence-viewers of the several towns, as provided by
this chapter, in their respective wards and villages.
§ 1, ch. 285, Laws of 1875 (emphasis added).

¶27 The City's second historical error was its

misapprehension of what occurred in 1878. The legislature did

not alter a city's authority to enforce fencing obligations; it

simply changed the statutory structure in a way that prefigured

today's interplay between Chapter 90 and Wis. Stat.

§ 990.01(42). The legislature eliminated the 1875 language that

had explicitly referenced cities and villages within the

statutory material describing their enforcement authority. The

resulting statute was evocative of (but not the same as) what

appears in Chapter 90 today. So, for example, it provided that:

When any controversy shall arise about the right of
the respective occupants in partition fences, or their
obligation to maintain the same, either party may have
the line divided, and the share of each assigned. In
either such case, application may be made to two or
more fence viewers of the town where the 1ands
lie . . . .

13
The Laws of 1871 carried forward the composition of the
fence viewer corps as it was constituted in 1849: "The
overseers of highways, in the several towns in this State shall
be fence viewers in their respective towns." § 21, ch. 17, Laws
of 1871.

19
 No. 2016AP2259

Wis. Rev. Stat. ch. 55, § 1393(3) (1878) (emphasis added). But

simultaneously with this change, it also adopted a rule of

statutory construction that is nearly identical to § 990.01(42):

"The word 'town' may be construed to include all cities, wards

or districts, unless such construction would be repugnant to the

provisions of any act specially relating to the same." Wis.

Rev. Stat. ch. 204, § 4971(17) (1878).14 And the corps of fence

viewers in 1878 comprised "[t]he overseers of highways in their

respective towns, the aldermen of cities in their respective

wards, and the trustees of villages in their respective

villages, . . . and in towns having less than three road

districts, the supervisors shall also be fence viewers." Wis.

Rev. Stat. ch. 55, § 1389 (1878). So, contrary to the City's

assessment of Chapter 90's history, cities were authorized to

enforce fencing obligations in 1878 just as they are now.

IV. CONCLUSION

¶28 Although we affirm the court of appeals, we have

traveled a different analytical route. The court of appeals
reasoned that the legislature inadvertently eliminated a city's

authority to administer the Enforcement Procedures in 1878. Its

conclusion that Chapter 90 is ambiguous probably stems chiefly

from the parties' failure to bring Wis. Stat. § 990.01(42) to

14
This rule of statutory construction did not specifically
refer to villages, so it is possible that they lost the
authority to administer the Enforcement Procedures at that time.
However, this is not material to the resolution of this case, so
we do not explore it further.

20
 No. 2016AP2259

its attention. However, as we described above, the legislature

never eliminated a city's authority to enforce landowners'

partition fence-related obligations, it merely restructured the

manner in which it expressed the authorization. That structure

has carried forward to Chapter 90 and § 990.01(42). So we

conclude that Chapter 90's plain language, when read in light of

§ 990.01(42), unambiguously authorizes the City to administer

the Enforcement Procedures.

By the Court.—The decision of the court of appeals is

affirmed.

21
 No. 2016AP2259

1