Stuart White v. City of Watertown ( 2019 )

2019 WI 9SUPREME 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 374PDC 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 9NOTICE
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.
(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
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.
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
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
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
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
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 . . . .
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
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
¶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
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