Court of Appeals Decides Wis. Stat., Ch. 90, Applies Equally to Cities, Villages, and Towns

Published by Matthew Dregne, Holly J. Wilson on

Over 150 years ago, the Wisconsin legislature passed a law, now codified in Chapter 90 of the Wisconsin Statutes, to resolve conflicts over fences separating neighboring agricultural lands.  Chapter 90 requires fences partitioning farmland from neighboring properties. Chapter 90 also provides detailed requirements for what constitutes a sufficient partition fence and provides cost sharing and dispute-resolution procedures. Chapter 90 assigns towns to assist in resolving disputes between property owners regarding partition fences on land located within their borders.  Chapter 90 also references cities and villages, but it makes no similar assignment to such municipalities. The law therefore is ambiguous about whether cities and villages are obligated to resolve fence disputes.  

In White v. City of Watertown, No. 2016AP2259 (Oct. 12, 2017), the Wisconsin Court of Appeals resolved this ambiguity and clarified that Chapter 90 applies to cities, villages, and towns alike.

The Whites owned and farmed land in the City of Watertown on which they maintained a partition fence. The cost and maintenance of the fence resulted in a dispute between the Whites and their neighbors. Invoking the procedures of Chapter 90, the Whites asked the City to assist in resolving this dispute. When the City refused, the Whites filed suit, asking the circuit court to clarify that the City was legally obligated to help. The circuit court observed that Chapter 90 is ambiguous but held that Chapter 90 applies to cities and villages, the same as it does to towns.

The City appealed, and the Court of Appeals affirmed. The appellate court agreed with the circuit court that the text of Chapter 90 is ambiguous. On the one hand, the statute requires “fence viewers” to carry out specified governmental duties, which include resolving disputes between property owners. And the statutory definition of fence viewers includes town supervisors, city alderpersons, and village trustees. On the other hand, most of Chapter 90’s references to “fence viewers” include only “town fence viewers.” Further, additional provisions in Chapter 90 appear to contemplate administration and enforcement only by towns.

To resolve this ambiguity, the Court of Appeals looked to the Chapter’s legislative history. The Court found that, prior to 1875, the Chapter contained no references to cities or villages. However, in 1875 the legislature amended Chapter 90 to apply to cities, villages, and towns alike. In 1878, the legislature revised the Wisconsin Statutes. Without reason, most of the language added in the 1875 amendments—language clarifying that the Act applied to cities and villages, as well as to towns—was omitted from the 1878 revised publication. Concluding that the omission “must have been inadvertent,” the Court of Appeals held that, when farmland is in a city or village, that municipality must administer and enforce Chapter 90’s requirements just as a town would if the land were within the town’s boundaries. As a result, the Whites prevailed and the City of Watertown will have to assume Chapter 90 duties with respect to the Whites’ land.

The Court of Appeals in White clarified that cities, villages, and towns must now assume the duties of fence viewers under Chapter 90. The main duty for fence viewers under Chapter 90 is to resolve disputes between adjoining property owners with lands divided by partition fence. For example, under Wis. Stat. § 90.10, fence viewers can direct property owners to repair or rebuild partition fences. Further, under § 90.07, fence viewers, under certain circumstances, may locate the line upon which a partition fence between adjoining lands must be built.

Filed Under: municipalities, municipal law, Wisconsin Court of Appeals, appeals

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