Dr. Stuart White and Janet White, Plaintiffs-Respondents,
City of Watertown, Defendant-Appellant, Township of Watertown and Township of Watertown Chairman, Richard Gimbler, Defendants.
from an order of the circuit court for Jefferson County Cir.
Ct. No. 2016CV29: JENNIFER L. WESTON, Judge.
Lundsten, P.J., Blanchard and Kloppenburg, JJ.
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
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.
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.
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.
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
• 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.
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.
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."
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.
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.
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
Chapter 90 provides detailed requirements for what
constitutes a "legal and sufficient" partition
fence. See Wis . Stat . § 90.02. 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."
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.
Statutory Interpretation Principles
"[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
"[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
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.").
"'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.,
The general test for ambiguity is whether a statute can be
understood by reasonable persons in two or more ...