904 N.W.2d 374
Wis. Ct. App.2017Background
- Stuart and Janet White own and operate fenced farming/grazing land located inside the City of Watertown and a dispute arose with neighboring residential property owners over a partition fence and its costs/maintenance.
- Chapter 90 of the Wisconsin Statutes governs partition fences on "qualifying land" (farming/grazing land) and prescribes fence standards, cost-sharing, and dispute-resolution procedures generally administered by "fence viewers."
- Section 90.01 defines fence viewers to include town supervisors, city alderpersons (in their aldermanic districts), and village trustees (in their villages), but many procedural provisions in Chapter 90 refer expressly only to town fence viewers and town clerks.
- The Whites asked the City to assume Chapter 90 duties for their property; the City refused, arguing Chapter 90's remedial and enforcement provisions apply only to towns and not to cities.
- The circuit court found Chapter 90 ambiguous and held the City must assume Chapter 90 duties for the Whites' land; the City appealed and the appellate court affirmed, resolving ambiguity via legislative history.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether cities and villages must administer and enforce Chapter 90 for qualifying land within their boundaries | Whites: §90.01's definition makes city/village officials "fence viewers" and Chapter 90 should be read to require cities/villages to perform the same duties as towns | City: Majority of Chapter 90 references only towns; definition merely expands pool of potential fence viewers and does not impose town duties on cities/villages | Court: Chapter 90 is ambiguous; legislative history (1875 act and 1878 revisers' notes) shows cities/villages must discharge the same Chapter 90 duties as towns; City must assume duties |
Key Cases Cited
- Brooks v. Allen, 1 Wis. 114 (Wis. 1853) (describing original agricultural purpose and scope of fence statute)
- Tomaszewski v. Giera, 260 Wis. 2d 569 (Wis. Ct. App. 2003) (summary of Chapter 90's general requirement that adjoining landowners jointly maintain partition fences)
- Noffke v. Bakke, 315 Wis. 2d 350 (Wis. 2009) (statutory interpretation reviewed de novo)
- State ex rel. Kalal v. Circuit Court for Dane Cty., 271 Wis. 2d 633 (Wis. 2004) (principles governing statutory interpretation and ambiguity)
- Heritage Farms, Inc. v. Market Ins. Co., 316 Wis. 2d 47 (Wis. 2009) (courts will not insert words into statutes)
- Green Bay Packaging, Inc. v. DILHR, 72 Wis. 2d 26 (Wis. 1976) (legislative inaction is weak evidence of intent)