Oct. 13, 2017 – State law requires towns to impose liens on landowners who fail to pitch in for the costs of maintaining or repairing shared partition fences that divide agricultural land. Recently, a state appeals court ruled that the fencing law applies to cities, too.

Wis. Stat. chapter 90 allows agricultural landowners to file complaints with “fence viewers” to help collect fence repair costs. “Fence viewers” are town supervisors, city alderpersons, and village trustees. But certain provisions of the Chapter 90 procedures refer only to “towns.” They do not say anything about cities or villages.

So when Stuart and Janet White filed a Chapter 90 complaint to recover fence repair costs against adjoining landowners, the City of Watertown refused to get involved, claiming Chapter 90 did not apply to cities. Not satisfied, the Whites sued the city.

The circuit court in Jefferson County ruled that Chapter 90 does apply to cities. And in White v City of Watertown,   (Oct. 12, 2017), a three-judge panel for the District IV Court of Appeals affirmed, noting that Ch. 90 is ambiguous but legislative history, dating to 1875, indicates the law applies to cities and villages just as it does to towns.

“[W]hen qualifying land is in a city or village, that city or village must administer and enforce Chapter 90 the same as a town would if the land were in that town,” Judge Paul Lundsten wrote for the three-judge panel.

While some provisions refer to “fence viewers,” the panel noted, other provisions refer only to “towns.” For instance, “fence viewers” must determine repair costs and issue certificates to complaining parties, who file the certificate with the “clerk of the town.”

Other provisions contain inconsistencies like this. The panel found those provisions ambiguous, requiring an examination of the legislative history on Chapter 90.

This historical examination led to 1875, when the Wisconsin Legislature made significant changes to the partition fencing law that is now Chapter 90. The 1875 act included cities and villages within the definition of “fence viewers.”

One provision expressly imposed on village trustees and city alderpersons the same “duty to discharge the duties imposed upon fence-viewers of the several towns.” But that same language was omitted from the first published version of the statutes, in 1878.

“Thus, the 1875 revised statutes contained essentially the same ambiguity that Chapter 90 still contains today, nearly 140 years later,” Judge Lundsten wrote.

“That is, the definition of fence viewers included city and village fence viewers, but other provisions in the chapter (then Chapter 55) referred only to towns.”

But the panel concluded that, despite the omission upon publication in 1878, the legislature did not intend to reverse course on including cities and villages.

“On the contrary, a revisers’ note indicates that the version of the fence viewing law published in the 1878 Revised Statutes was intended to carry the 1875 act forward, albeit with some clarification,” Judge Lundsten explained. “[W]e understand the note to show that the legislature’s intent was to preserve the thrust of the 1875 act.”

The city argued that if the legislature intended for cities and villages to be included, it would have made that clarification sometime in the last 140 years. The panel disagreed.

“We reject this argument because the City provides no reason to think that the legislature’s attention has ever been directed to the ambiguity that we address and resolve today,” wrote Judge Lundsten, also rejecting the city’s argument that Chapter 90 does not apply unless the fence divides agricultural lands on both sides.

“Chapter 90 now expressly provides that only one of the adjoining properties must have the requisite agricultural use,” Judge Lundsten wrote.