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White v. City of Watertown

Court of Appeals of Wisconsin, District IV

October 12, 2017

Dr. Stuart White and Janet White, Plaintiffs-Respondents,
v.
City of Watertown, Defendant-Appellant, Township of Watertown and Township of Watertown Chairman, Richard Gimbler, Defendants.

         APPEAL from an order of the circuit court for Jefferson County Cir. Ct. No. 2016CV29: JENNIFER L. WESTON, Judge. Affirmed.

          Before Lundsten, P.J., Blanchard and Kloppenburg, JJ.

          LUNDSTEN, P.J.

         ¶1 Chapter 90 of the Wisconsin Statutes regulates partition fences on farming and grazing land as defined in the chapter. For ease of reading, we will frequently refer to farming and grazing land that is covered by Chapter 90 as "qualifying land."

         ¶2 Chapter 90 provides fencing specifications, requires adjoining landowners to share costs, and provides dispute-resolution procedures for these landowners. Chapter 90 makes clear that, when qualifying land is in a town, the town is responsible for administering and enforcing Chapter 90 in respect to the fencing. However, Chapter 90 is unclear as to whether cities and villages are responsible for administering and enforcing the chapter when adjoining lands are within their boundaries.

         ¶3 This lack of clarity in Chapter 90 gives rise to the dispute here between the City of Watertown and Stuart and Janet White. The Whites, who own fenced farming land in the City, argue that the City has the same duties to administer and enforce Chapter 90 that a town would have if the land were in a town. The City disagrees.

         ¶4 For the reasons explained below, we agree with the circuit court that Chapter 90 is ambiguous. We thus turn to the legislative history and, based on that history, agree with the circuit court and the Whites that, when 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. Accordingly, we affirm the circuit court's order declaring that the City must assume Chapter 90 duties with respect to the Whites' land.

         Background

         ¶5 The Whites' complaint for declaratory judgment includes the following allegations:

• The Whites own land in the City that they use as a farm, including for livestock.
• Chapter 90 requires the Whites to maintain a partition fence between their land and neighboring residential properties.
• The cost and maintenance of the fence resulted in a dispute between the Whites and their neighbors.
• The Whites have a right under Chapter 90 to have the appropriate local government entity resolve this dispute.
• The Whites asked the City to assume Chapter 90 duties to resolve the dispute.
• The City has refused to assume those duties.

         ¶6 The Whites asked the circuit court to declare the parties' respective rights. The Whites argued that, read most reasonably, Chapter 90 provides that the City must assume Chapter 90 duties for land located in the City.

         ¶7 The City sought dismissal of the Whites' complaint. The City contended that the Whites' complaint against the City "must be dismissed as a matter of law because the terms of Chapter 90 apply to towns, not to cities."

         ¶8 The circuit court concluded that Chapter 90 is ambiguous and, further, agreed with the Whites that Chapter 90 is most reasonably read as applying to cities the same as to towns. The City appeals.

         Discussion

         ¶9 The parties renew their dispute over the proper interpretation of Chapter 90. Statutory interpretation presents a question of law that appellate courts review de novo. Noffke v. Bakke, 2009 WI 10, ¶9, 315 Wis.2d 350, 760 N.W.2d 156.

         ¶10 The general purpose of Chapter 90, to regulate partition fencing between property owners on agricultural lands, has not changed for more than 150 years:

The design of that chapter of the statutes is to regulate and provide for the building and keeping in repair of division fences, and for the settlement of disputes in regard to the same. The fences contemplated by the statute are the ordinary fences of the country, built upon agricultural lands ….

Brooks v. Allen, 1 Wis. 114');">1 Wis. 114');">1 Wis. 114');">1 Wis. 114, [*127], 116, [*129] (1853); Tomaszewski v. Giera, 2003 WI.App. 65, ¶11, 260 Wis.2d 569, 659 N.W.2d 882 (stating that "under this statute, adjoining landowners and occupants of land used for farming or grazing are generally required to jointly maintain partition fences, " and describing in general terms Chapter 90's dispute-resolution procedures).

         ¶11 Chapter 90 provides detailed requirements for what constitutes a "legal and sufficient" partition fence. See Wis . Stat . § 90.02.[1] In addition, Chapter 90 imposes other requirements on landowners covered by the chapter. See, e.g., Wis.Stat. § 90.06 (regarding fences built before boundary line is located). Finally, as noted, Chapter 90 provides cost-sharing and dispute- resolution procedures. See, e.g., Wis.Stat. §§ 90.07; 90.10; and 90.11. As we shall see, the governmental duties associated with these procedures are, for the most part, carried out by "fence viewers."

         ¶12 There is no dispute that, when qualifying land is in a town, that town is responsible for these Chapter 90 duties, that is, for administering and enforcing Chapter 90. At issue here is whether, when qualifying land is in a city or village, that city or village must discharge those Chapter 90 duties. We conclude that it must.[2]

         A. Statutory Interpretation Principles

         ¶13 "[T]he purpose of statutory interpretation is to determine what the statute means so that it may be given its full, proper, and intended effect." State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶44, 1 Wis.2d 633');">271 Wis.2d 633, 681 N.W.2d 110. "[S]tatutory interpretation 'begins with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry.'" Id., ¶45 (quoted source omitted).

         ¶14 "[S]tatutory 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; and reasonably, to avoid absurd or unreasonable results." Id., ¶46. Also, "[s]tatutory language is read where possible to give reasonable effect to every word, in order to avoid surplusage." Id.

         ¶15 As a corollary to this surplusage canon, courts avoid interpretations that require inserting words into statutes. See Heritage Farms, Inc. v. Markel Ins. Co., 2009 WI 27, ¶14, 316 Wis.2d 47, 762 N.W.2d 652 ("Because the legislature did not so limit the application of § 26.21(1) to railroad corporations, we will not insert those words into the statute to create such a result."); C. Coakley Relocation Sys., Inc. v. City of Milwaukee, 2008 WI 68, ¶24, 310 Wis.2d 456, 750 N.W.2d 900 ("We will not insert the word 'correct' or 'lawful' into this plainly worded and easily understood statute.").

         ¶16 "'If this process of analysis yields a plain, clear statutory meaning, then there is no ambiguity, and the statute is applied according to this ascertainment of its meaning.'" Kalal, 1 Wis.2d 633');">271 Wis.2d 633, ¶46 (quoted source omitted). If, instead, statutory language is ambiguous, then courts examine legislative history to resolve the ambiguity. See id., ¶¶50-51.

         ¶17 The general test for ambiguity is whether a statute can be understood by reasonable persons in two or more ...


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