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White v. City of Watertown

Supreme Court of Wisconsin

January 31, 2019

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

          Submitted on Briefs: oral argument: October 10, 2018

         REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 378 Wis.2d 592, 904 N.W.2d 374');">904 N.W.2d 374 PDC No: 2017 WI.App. 78.

          Source of Appeal: Circuit Jefferson, Jennifer L. Weston Judge

          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.

          DANIEL KELLY, J.

         ¶1 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 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.

         ¶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 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.'"

         ¶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');">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.


         ¶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 CEP 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 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');">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. 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 ...

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