Feb. 13, 2019 – The City of Watertown must determine and allocate the cost of maintaining or constructing a large partition fence that separates property between adjoining farmland owners within the city, the Wisconsin Supreme Court has ruled.
The city argued that statutory provisions imposing an obligation to resolve such partition fencing disputes did not apply to cities, only towns. But the state supreme court, in White v. City of Watertown, 2019 WI 9 (Jan. 31, 2019), unanimously ruled that it did.
Justice Daniel Kelly, in a unanimous opinion, said “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.”
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 remaining provisions of Chapter 90’s partition 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 from 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 applies to cities. And a three-judge appeals court panel affirmed, concluding inconsistent language made the statute ambiguous, but a review of the legislative history showed an intent to include cities.
“Although we affirm the court of appeals, we have traveled a different analytical route,” wrote Justice Kelly, noting that the plain language of the statutes provides the answer.
“Out of all the Chapter 90 provisions cited by the parties, only one mentions municipalities other than towns,” Kelly wrote. “But it is a provision without which neither of the partition statutes nor any of the Enforcement Procedure statutes could operate.”
Kelly was referring to Wis. Stat. section 90.11, which requires a complaint to “fence viewers of the town,” which triggers other procedures authorities must follow.
The city argued that this provision clearly applies only to towns, even though fence viewers, under the statute, can also be city alderpersons and village trustees.
But the supreme court looked beyond Chapter 90, to Wis. Stat. section 990.01 to resolve the ambiguity in using the term “town” in most of Chapter 90.
Section 990.01 says: “In 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. …”
Section 990.01(42) says “towns” may be construed to include “cities, villages, wards or districts.” Neither the parties nor the lower courts drew attention to the section 990.01 provisions, but the supreme court relied on it to reach its conclusion in the case.
“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,” Kelly wrote. “Each of the statutes we have construed makes perfect sense when we read ‘town’ to include ‘city.’”
The supreme court concluded that Chapter 90’s plain language, “when read in light of § 990.01(42), unambiguously authorizes the City to administer the Enforcement Procedures” relating to the allocation and maintenance costs of partition fencing.
