Stuart White v. City of Watertown
Stuart White v. City of Watertown
Opinion
*63 *322 ¶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
*323 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...."
¶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
¶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.
*64 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 *325 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
,
¶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.
II. STANDARD OF REVIEW
¶8 The Whites' request for a declaration of rights pursuant to the terms of Chapter 90 presents a
*326
question of law, which we review de novo.
See
CED Props., LLC v. City of Oshkosh
,
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
*65
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.
,
¶11 The City's argument, therefore, requires that we review the statutes relevant to the Enforcement Procedures to determine whether their plain meaning empowers cities, as well as towns, to resolve fencing disputes.
6
The parties tell us we may find the answer in
¶12 The parties do not contest the necessity for partition fencing between the Whites' land and adjoining properties. We have no doubt of its necessity because the statutory command is unequivocal: "[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 in equal shares so long as either party continues to so occupy the lands...."
¶13 However, we encounter municipality-specific statutory references almost immediately upon commencing our inquiry into the landowners' respective responsibilities for the fencing. Although all property owners along the fence line must share in its cost, Chapter 90 contains a mechanism for apportioning the responsibility for actually building and maintaining the fence. This partitioning of responsibility can occur either before the fence's construction (
*329 [e]very partition of a fence or of the line upon which partition fences are to be built between owners of adjoining lands, after being recorded in the town clerk's office, obligates the owners, their heirs and assigns to build and maintain the fence in accordance with the partition, if any of the following conditions is met: ... The partition is made by fence viewers in the manner provided under this chapter and is in writing under their hands.
§ 90.05(1)(a)2. (emphasis added). The post-construction statute is, seemingly, similarly specific with respect to the type of municipality in which the construction and maintenance obligations may arise. A property owner who wishes to partition responsibility for a pre-existing fence may apply "to 2 or more fence viewers of the
town where the lands lie
or to 2 or more fence viewers of 2 towns, if the lands lie in 2 towns...." § 90.07(2) (emphasis added). Once the fence viewers assign responsibility to the respective owners, they "shall file such decision in the
town
clerk's office, who shall record the same."
¶14 As we turn to the statutes comprising the Enforcement Procedures, we continue encountering municipality-specific references. The parties identify three circumstances in which Chapter 90 allows a landowner to engage these proceedings. In each of them, the City says, the applicable statute assigns enforcement responsibilities to towns, not cities. The first circumstance involves a landowner who has failed in his responsibility to maintain or repair a partition fence. The applicable statute provides that, "[i]f any person neglects to repair or rebuild any partition fence that by law that person is required to maintain, the aggrieved party may complain to 2 or more fence viewers of the
town
, who, after giving notice as provided
*330
in s. 90.07, shall examine the fence."
Whenever any owner or occupant of land has built, repaired or rebuilt any fence, pursuant to the provisions of this chapter, that the adjoining owner or occupant has been lawfully directed by fence viewers to build, repair or rebuild but has failed to do within the time prescribed, the owner or occupant who built, repaired or rebuilt the fence may complain to any 2 or more fence viewers of the town .
When, in any controversy that may arise between occupants of adjoining lands as to their respective rights in any partition *67 fence, it shall appear to the fence viewers that either of the occupants had, before any complaint made to them, voluntarily erected the whole fence, or more than that occupant's just share of the same, or otherwise become proprietor thereof, the other occupant shall pay for so much as may be assigned to him or her to repair or maintain; the just value thereof which the other occupant ought to pay shall be ascertained by proceeding as prescribed in s. 90.11.
¶15 Out of all the Chapter 90 provisions cited by the parties, only one mentions municipalities other than towns. But it is a provision without which neither of the partition statutes nor any of the Enforcement Procedure statutes could operate. In each of these statutes, the officials through whom the municipality acts are "fence viewers." The corps of these officials is established by
¶16 Taking these statutes together, the City concludes it is without authority to resolve the Whites' dispute with their neighbors. The City believes that Chapter 90 creates obligations amongst neighboring landowners that can arise (or be enforced) only in towns. So it maintains that the Whites can have no dispute with their neighbors cognizable under Chapter 90 because their property all lies within Watertown's city limits, not that of a town. And, it argues, Chapter 90 gives the City no authority to enforce those obligations because each of the Enforcement Procedure statutes requires the proceeding to commence with a complaint to "fence viewers of the town ." The City is nonplussed by the fact that Chapter 90 allows an alderperson to serve as a fence viewer. This, it says, simply expands the corps of potential fence viewers; it does not confer any substantive authority on cities to administer the Enforcement Procedures.
*332
¶17 In any event, the City says, even if the statutes allowed it to resolve the dispute between the Whites and their neighbors, their ultimate remedy under Chapter 90 is administered through a town, not a city. When an adjoining landowner fails to pay the amount directed by the fence viewers' certificate, the complaining owner files the certificate with the "clerk of the town" in which the adjoining owner's property is located.
7
The clerk then "issue[s] a warrant for the amount of the listed expenses and fees upon the town treasurer payable to the person to whom the certificate was executed and delivered."
¶18 The City's position is plausible, but ultimately unsustainable. There is a discordant note in its reasoning, a harrying insistence that some of the statutory pieces are not assembled quite right. The dissonance that finds no resolution in the City's explanation relates to the corps of fence viewers. The City says
¶19 That means an alderperson who crosses from his city to a neighboring town loses the authority to perform the functions of a fence viewer. Indeed, he loses that authority even if he merely steps into an adjacent aldermanic district. So if Chapter 90 does not authorize cities to administer the Enforcement Procedures, then it left alderpersons with nothing to do even as it constituted them as fence viewers. 9 By itself, this is at least a curiosity, and perhaps at most an invitation to read the chapter as ambiguous with respect to whether it grants any fence-related authority to cities and villages. But this statutory provision does not exist on its own, and when placed amongst all the relevant statutes, the dissonance suggested by the City's argument resolves to a harmonious whole.
¶20 The key to the proper understanding of Chapter 90 is
¶21 Applying this rule to the question before us entirely eliminates the ambiguity that the parties, the circuit court, and the court of appeals all saw in Chapter 90. Each of the statutes we have considered makes perfect sense when we read "town" to include "city." For instance, the pre-construction partition statute (
town
, who, after giving notice as provided in s. 90.07, shall examine the fence."
town
."). And because the statute addressing the third circumstance
*335
(landowners who refuse to contribute to the maintenance of a partition fence) refers back to § 90.11 for the proper procedure,
¶22 This also resolves the City's concern that, even if cities could administer the Enforcement Procedures, they would still lack the authority to provide the remedy described by Chapter 90. With the help of
¶23 Finally, returning full circle to the statute that alerted us to the dissonance and ambiguity in the City's interpretive methodology (
¶24 We agree with the City's admonition that we must take the statutory text as we find it, and we honor it with this reading of the relevant statutes. Any other reading would break faith with the principles we described in
Kalal
.
*70 ¶25 Perhaps not incidentally, this also answers the City's challenge that Chapter 90's history illustrates *337 that it applies only to towns. 12 The City accurately observed that, originally, our laws made only those who owned property in towns responsible for maintaining partition fences. Consequently, the only fence viewers were town officials. Wis. Rev. Stat. ch. 14, § 20 (1849) ("The overseers of highways in the several towns in this state shall be fence viewers in their respective towns."). Therefore, it is true that, in 1849, cities had no authority to administer Enforcement Procedures. But then the City's historical analysis hit a snag.
¶26 The City says that, in 1878, the legislature expanded the corps of fence viewers to include city officials, but did not simultaneously authorize cities or villages to enforce the landowners' partition fence-related obligations. The City is mistaken in two material respects. First, the legislature added city and village officials to the corps of fence viewers in 1875, not 1878. And while doing so, the legislature did simultaneously authorize city and village officials to enforce the landowners' duties within their respective jurisdictions:
Section 1. Chapter seventeen (17), of the Revised Statutes, entitled, "Of fences and fence-owners [viewers]; of pounds and the impounding of cattle, and the acts amendatory thereto," 13 is hereby amended so as to read as follows: Section twenty-five (25). The provisions *338 of this chapter and of the acts amendatory thereto, shall extend to and include all out-lots occupied and used for agricultural purposes, and embraced in the plat of any incorporated city or village within this state, and the aldermen of the respective wards of such city, and the trustees of any such village, are hereby empowered, and it is hereby made their duty, to discharge the duties imposed upon fence-viewers of the several towns, as provided by this chapter, in their respective wards and villages .
§ 1, ch. 285, Laws of 1875 (emphasis added).
¶27 The City's second historical error was its misapprehension of what occurred in 1878. The legislature did not alter a city's authority to enforce fencing obligations; it simply changed the statutory structure in a way that prefigured today's interplay between Chapter 90 and
*71 When any controversy shall arise about the right of the respective occupants in partition fences, or their obligation to maintain the same, either party may have the line divided, and the share of each assigned. In either such case, application may be made to two or more fence viewers of the town where the lands lie ....
Wis. Rev. Stat. ch. 55, § 1393(3) (1878) (emphasis added). But simultaneously with this change, it also *339 adopted a rule of statutory construction that is nearly identical to § 990.01(42) : "The word 'town' may be construed to include all cities, wards or districts, unless such construction would be repugnant to the provisions of any act specially relating to the same." Wis. Rev. Stat. ch. 204, § 4971(17) (1878). 14 And the corps of fence viewers in 1878 comprised "[t]he overseers of highways in their respective towns, the aldermen of cities in their respective wards, and the trustees of villages in their respective villages, ... and in towns having less than three road districts, the supervisors shall also be fence viewers." Wis. Rev. Stat. ch. 55, § 1389 (1878). So, contrary to the City's assessment of Chapter 90's history, cities were authorized to enforce fencing obligations in 1878 just as they are now.
IV. CONCLUSION
¶28 Although we affirm the court of appeals, we have traveled a different analytical route. The court of appeals reasoned that the legislature inadvertently eliminated a city's authority to administer the Enforcement Procedures in 1878. Its conclusion that Chapter 90 is ambiguous probably stems chiefly from the parties' failure to bring
By the Court. -The decision of the court of appeals is affirmed.
This is a review of a published court of appeals opinion,
White v. City of Watertown
,
All subsequent references to the Wisconsin Statutes are to the 2015-16 version unless otherwise indicated.
In addition to the City of Watertown, the complaint also named City of Watertown Mayor John David, City of Watertown Alderman Kenneth Berg, the Town of Watertown, and Town of Watertown Chairman Richard Gimbler as defendants. The circuit court dismissed these parties for various reasons, which dismissals the Whites do not challenge.
The circuit court dismissed the Whites' request for relief in the form of mandamus or an injunction, holding that the case's posture was not ripe for such relief. The Whites do not challenge that determination.
The City did not argue that the circuit court erred in denying any of the procedural grounds for dismissal, and so we consider them abandoned.
See, e.g.
,
A.O. Smith Corp. v. Allstate Ins. Cos.
,
The purpose of our review is, however, very limited. We express no opinion on whether the Whites have complied with the requirements of Chapter 90 or, more specifically, the procedural aspects of the Enforcement Proceedings.
"The complaining party may file the certificate executed and delivered to him or her under sub. (1) (b) with the clerk of the town in which the lands charged with the expense and fees set forth in the certificate are located."
However, when a fence tracks the line dividing towns, or it lies partly in one town and partly in another, alderpersons from the affected towns serve as fence viewers.
Reading
We are mindful that
We do not employ
In adopting
We do not discuss statutory history here as an aid in determining the plain meaning of the statutes in question, which we have already discovered without reference to it. Instead, we address it out of respect for the City's argument and to demonstrate that there are no anomalies in our analysis.
The Laws of 1871 carried forward the composition of the fence viewer corps as it was constituted in 1849: "The overseers of highways, in the several towns in this State shall be fence viewers in their respective towns." § 21, ch. 17, Laws of 1871.
This rule of statutory construction did not specifically refer to villages, so it is possible that they lost the authority to administer the Enforcement Procedures at that time. However, this is not material to the resolution of this case, so we do not explore it further.
Reference
- Full Case Name
- Dr. Stuart WHITE and Janet White, Plaintiffs-Respondents, v. CITY OF WATERTOWN, Defendant-Appellant-Petitioner, Township of Watertown and Township of Watertown Chairman Richard Gimbler, Defendants.
- Cited By
- 14 cases
- Status
- Published