2019 WI 9

SUPREME COURT OF WISCONSIN

CASE NO.: 2016AP2259

COMPLETE TITLE: 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.

REVIEW OF DECISION OF THE COURT OF APPEALS 

Reported at 378 Wis. 2d 592, 904 N.W.2d 374 

PDC No: 2017 WI App 78 - Published

OPINION FILED: January 31, 2019

SUBMITTED ON BRIEFS:

ORAL ARGUMENT: October 10, 2018

SOURCE OF APPEAL:

COURT: Circuit

COUNTY: Jefferson

JUDGE: Jennifer L. Weston

JUSTICES:

CONCURRED:

DISSENTED:

NOT PARTICIPATING: 

ATTORNEYS:

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.
2019 WI 9

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2016AP2259

(L.C. No. 2016CV29)

STATE OF WISCONSIN : IN SUPREME COURT

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.

FILED

JAN 31, 2019

Sheila T. Reiff

Clerk of Supreme Court

REVIEW of a decision of the Court of Appeals. Affirmed. 

¶1 DANIEL KELLY, J. 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 
No. 2016AP2259 

2

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. 

 

1 This is a review of a published court of appeals opinion, 

White v. City of Watertown, 2017 WI App 78, 378 Wis. 2d 592, 904 

N.W.2d 374, which affirmed the Jefferson County Circuit Court, 

the Honorable Jennifer L. Weston, presiding.

2 All subsequent references to the Wisconsin Statutes are to 

the 2015-16 version unless otherwise indicated.
No. 2016AP2259 

3

¶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 
No. 2016AP2259 

4

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.'"

 

3 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.

4 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.
No. 2016AP2259 

5

¶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.

¶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 question of law, 

which we review de novo. See CED 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 

 

5 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., 222 Wis. 2d 475, 491, 588 N.W.2d 285 (Ct. 

App. 1998) ("[A]n issue raised in the trial court, but not 

raised on appeal, is deemed abandoned.").
No. 2016AP2259 

6

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 wellreceived——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 ("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.
No. 2016AP2259 

7

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 

assisted in arriving at the meaning of a statute." Id. If we 

determine the statute's plain meaning through this methodology, 

we go no further. Kalal, 271 Wis. 2d 633, ¶45 ("If the meaning 

of the statute is plain, we ordinarily stop the inquiry."

(internal marks and citation omitted)). See generally Daniel R. 

Suhr, Interpreting Wisconsin Statutes, 100 Marq. L. Rev. 969 

(2017).

¶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 Wis. Stat. §§ 90.01 (Fence viewers), 

90.03 (Partition fences; when required), 90.05 (How partition 

made), 90.07 (Division of partition fence), 90.10 (Compulsory 

repair of fence), 90.11 (Cost of repairs), and 90.12 

 

6 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.
No. 2016AP2259 

8

(Apportionment of cost of fence). We will consider each of 

these statutes with a specific focus on what they say about the 

type of municipality to which they apply. Following that 

analysis, we will address an additional statutory provision that 

neither party mentioned, but which is nonetheless critical to 

the question before us.

¶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 . . . ." 

Wis. Stat. § 90.03. Nothing in this statute suggests its 

requirements apply only when the land is located outside of city 

limits. Because the Whites graze their property, we take it as 

established that partition fences must separate their land from 

adjoining properties. 

¶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 
No. 2016AP2259 

9

fence's construction (Wis. Stat. § 90.05), or afterwards (Wis. 

Stat. § 90.07). The pre-construction statute provides that 

[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." 

Id. (emphasis added).

¶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 
No. 2016AP2259 

10

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 in s. 90.07, shall examine the fence." Wis. Stat. 

§ 90.10 (emphasis added). The second circumstance arises when a 

landowner shoulders the burden of building, repairing, or 

rebuilding a partition fence for which an adjoining landowner is 

actually responsible. The Enforcement Procedures allow the 

landowner to recover his fence-related expenses from the 

responsible owner, a process that begins with a complaint to the 

fence viewers: 

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.

Wis. Stat. § 90.11(1)(a) (emphasis added). The final 

circumstance identified by the parties involves landowners who 

refuse to contribute to the maintenance of a partition fence 

built at the expense of an adjoining landowner:

When, in any controversy that may arise between 

occupants of adjoining lands as to their respective 

rights in any partition 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 
No. 2016AP2259 

11

value thereof which the other occupant ought to pay 

shall be ascertained by proceeding as prescribed in s. 

90.11.

Wis. Stat. § 90.12. Although this provision does not have a 

municipality-specific reference, it directs the complaining 

landowner back to § 90.11, which requires a complaint to "any 2 

or more fence viewers of the town." § 90.11(1)(a).

¶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 Wis. Stat. § 90.01: "The 

supervisors in their respective towns, the alderpersons of 

cities in their respective aldermanic districts, and the 

trustees of villages in their respective villages shall be fence 

viewers."

¶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 
No. 2016AP2259 

12

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. 

¶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." Wis. Stat. § 90.11(2)(a). But there is no 

statutory authority for a city clerk to issue a warrant upon a 

city treasurer, the City says, so Chapter 90 gives the Whites no 

remedy even if it had the authority to decide the fencing 

dispute.

 

7 "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." Wis. Stat. 

§ 90.11(2)(a).
No. 2016AP2259 

13

¶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 Wis. Stat. § 90.01 does nothing but identify who 

may serve in that capacity. But its express terms do more than 

that——they also identify where the fence viewers may perform 

their official functions. That is, town supervisors are not 

fence viewers wherever they may roam, they are fence viewers 

only "in their respective towns[.]" § 90.01.8 The same is true 

of village trustees——they are fence viewers "in their respective 

villages[.]" Id. And city alderpersons are fence viewers only 

"in their respective aldermanic districts[.]" Id.

¶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 

 

8 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. Wis. Stat. 

§ 90.14.
No. 2016AP2259 

14

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 

Wis. Stat. § 990.01, which instructs us on the proper 

construction of statutes. The City noted, correctly, that this 

statute directs that "[i]n the construction of Wisconsin laws 

the words and phrases which follow shall be construed as 

indicated unless such construction would produce a result 

inconsistent with the manifest intent of the legislature[.]" 

§ 990.01. But somehow both the City and the Whites overlooked 

the statute's sixtieth rule, which tells us that "'Town' may be 

construed to include cities, villages, wards or districts." 

Wis. Stat. § 990.01(42). Because these rules are mandatory 

("shall be construed") we must consider, when applying Chapter 

 

9 Reading Wis. Stat. § 90.01 as creating an undifferentiated 

pool of fence viewers who are free to enter towns across the 

state to resolve fencing disputes would require that we overlook 

the statute's geographical limitations. We try not to ignore 

statutory text. See State ex rel. Kalal v. Circuit Court for 

Dane Cty., 2004 WI 58, ¶46, 271 Wis. 2d 633, 681 N.W.2d 110

("Statutory language is read where possible to give reasonable 

effect to every word, in order to avoid surplusage.").
No. 2016AP2259 

15

90, whether we should understand "town" to also mean "city." On 

the answer to that question there can be no doubt.

¶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 (Wis. Stat. § 90.05) works seamlessly within 

city limits because where it says that the partition shall be 

recorded with the "town clerk's office," we may read that 

provision as the "city clerk's office." Similarly, we may read 

the post-construction partition statute (Wis. Stat. § 90.07(2)) 

as applying within the "city where the lands lie." The same is 

true of the statutes addressing the three circumstances in which 

a landowner may wish to engage the Enforcement Procedures. In 

the first——that is, when a landowner has failed in his 

responsibility to maintain or repair a partition fence——an 

adjoining landowner "may complain to 2 or more fence viewers of 

the [city] town, who, after giving notice as provided in s. 

90.07, shall examine the fence." Wis. Stat. § 90.10. The rule 

allows the same substitution when a landowner performs fencing 

duties that lawfully belong to another (the second 

circumstance). Wis. Stat. § 90.11(1)(a) ("[T]he owner or 

occupant who built, repaired or rebuilt the fence may complain 

to any 2 or more fence viewers of the [city] town."). And 

because the statute addressing the third circumstance 

(landowners who refuse to contribute to the maintenance of a 
No. 2016AP2259 

16

partition fence) refers back to § 90.11 for the proper 

procedure, Wis. Stat. § 90.12 makes a city competent to resolve 

the fencing dispute.

¶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 Wis. Stat. § 990.01(42), a 

complaining landowner in the City may file his certificate of 

fence-related expenses with the city clerk instead of a town 

clerk. Wis. Stat. § 90.11(1)(c). And whereas in the absence of 

§ 990.01(42) only a town clerk would have the authority to issue 

a warrant on the town treasurer in the amount of the landowner's 

fencing expenses, this statutory rule of construction allows a 

city clerk to issue such a warrant on the city treasurer. 

§ 90.11(2)(a). 

¶23 Finally, returning full circle to the statute that 

alerted us to the dissonance and ambiguity in the City's 

interpretive methodology (Wis. Stat. § 90.01), we can now 

understand it as fitting neatly into the overall statutory 

scheme. Indeed, in light of Wis. Stat. § 990.01(42), the 

composition of the corps of fence viewers is not just logical, 

it is necessary. Chapter 90's creation of enforceable fencerelated obligations in both cities and villages called forth a 

need for fence viewers authorized to administer the Enforcement 

Procedures in those types of municipalities. The legislature 

satisfied that need by making alderpersons and trustees a part 

of the corps. § 90.01. And whereas the geographical limitation 
No. 2016AP2259 

17

on a fence viewer's authority is a disposable oddity in the 

City's understanding of Chapter 90, in reality it creates a 

logical relationship of accountability between the fence viewer 

and the residents of the political subdivision he already 

serves.10

¶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. 271 

Wis. 2d 633, ¶¶45-46. We could not accept the City's argument 

without turning significant portions of Wis. Stat. § 90.01 into 

surplusage. Nor would our textual analysis have been complete 

without referring to the statutorily-prescribed rule of 

construction that instructs us to consider construing "town" to 

also mean "city" or "village."11

 

10 We are mindful that Wis. Stat. § 990.01 says its rules of 

construction apply unless the result would be "inconsistent with 

the manifest intent of the legislature[.]" And we are also 

mindful that § 990.01(42) says that "'[t]own' may be construed 

to include cities, villages, wards or districts." (Emphasis 

added.) Both of these passages indicate that this rule of 

construction, like all rules of construction, must not be 

deployed mechanically. For the reasons we described, supra, 

§ 990.01(42) makes Chapter 90 applicable to cities as well as 

towns. So our holding is limited to Chapter 90, and we express 

no opinion on what effect, if any, § 990.01(42) would have on 

statutory provisions outside of Chapter 90.

11 We do not employ Wis. Stat. § 990.01(42) to interpret 

"town" to mean "city" or "village" in Wis. Stat. § 90.01 (the 

statute creating the corps of fence viewers). The rule of 

construction that allows that inclusive reading applies "unless 

such construction would produce a result inconsistent with the 

manifest intent of the legislature." § 990.01.

(continued)
No. 2016AP2259 

18

¶25 Perhaps not incidentally, this also answers the City's 

challenge that Chapter 90's history illustrates 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 

 

In adopting Wis. Stat. § 90.01, the legislature carefully 

distinguished between the officials of each type of municipality 

(town, city, and village) and limited the officials' service as 

fence viewers to their respective jurisdictions. If we 

substituted "city" for "town" in this context, we would 

contravene the legislature's clear limitation on a fence 

viewer's geographical authority.

12 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. 
No. 2016AP2259 

19

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 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 Wis. Stat. 

§ 990.01(42). The legislature eliminated the 1875 language that 

had explicitly referenced cities and villages within the 

statutory material describing their enforcement authority. The 

 

13 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.
No. 2016AP2259 

20

resulting statute was evocative of (but not the same as) what 

appears in Chapter 90 today. So, for example, it provided that: 

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 1ands 

lie . . . .

Wis. Rev. Stat. ch. 55, § 1393(3) (1878) (emphasis added). But 

simultaneously with this change, it also 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

 

14 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.
No. 2016AP2259 

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¶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 Wis. Stat. § 990.01(42) to 

its attention. However, as we described above, the legislature 

never eliminated a city's authority to enforce landowners' 

partition fence-related obligations, it merely restructured the 

manner in which it expressed the authorization. That structure 

has carried forward to Chapter 90 and § 990.01(42). So we 

conclude that Chapter 90's plain language, when read in light of 

§ 990.01(42), unambiguously authorizes the City to administer 

the Enforcement Procedures.

By the Court.—The decision of the court of appeals is 

affirmed.
No. 2016AP2259 

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