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
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.
of Appeal: Circuit Jefferson, Jennifer L. Weston Judge
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
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.
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.
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). The statute
assigns responsibility for the fence to all adjoining
property owners, each of whom must bear maintenance expenses
"in equal shares." Id.
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
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. 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.
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.It held that "all provisions of
Chapter 90 apply to the City, despite a failure of specific
reference therein to 'cities.'"
The City appealed the circuit court's grant of
declaratory relief and the court of appeals
affirmed. 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.
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.
STANDARD OF REVIEW
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
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
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 ...