November/December 2017 Issue

Also in this issue: New Statute Governing Conditional Use Permits, Variances, and Substandard Lots     |     Limitations on Collecting Attorney Fees for Prosecution of Ordinance Violation     |     Upper Midwest Municipals Move Forward with Major New Solar Project

Court Rules that Fence Law Applies to Cities and Villages

Julia Potter | 12.12.17

In a recent decision, White v. City of Watertown, 2016AP2259 (Wis. Ct. App. Oct. 1, 2017), the Wisconsin Court of Appeals made clear that Wis. Stat. Ch. 90, Wisconsin’s agricultural fence law, applies not only to towns, but also to cities and villages. Chapter 90 regulates partition fences between property owners on land used for farming and grazing purposes. Among other issues, it governs fencing specifications, cost-sharing between adjoining landowners, and dispute-resolution procedures. The primary method of resolving disputes under Chapter 90 is to have ​“fence viewers” from the local municipality issue a binding decision that is filed with the municipal clerk.

The case arose out of a dispute between the Whites, who owned farm land in the City of Watertown, and their neighbors. Because the Whites used their land for farming and grazing purposes, Wis. Stat. § 90.03 required them to maintain a partition fence between their land and neighboring properties. The Whites and their neighbors could not come to an agreement about the cost and maintenance of the fence, so the Whites contacted the City and asked that it provide fence viewers to resolve the dispute and compel their neighbors to contribute financially toward the cost of maintaining the fence. The City took the position that the provisions in Chapter 90 dealing with enforcement and administration of the fence law applied only to towns, not to cities and villages, and refused to resolve the dispute. The Whites sued the City and asked the court to decide whether the City was obligated to enforce and administer the fence law for land located within City boundaries. 

The Court held that Chapter 90 does indeed apply to cities and villages, as well as towns. The Court acknowledged that the language in Chapter 90 was ambiguous. While the definition of fence viewers mentions that city alderpersons and village trustees may be fence viewers, the vast majority of provisions in Chapter 90 expressly refer only to town fence viewers and refer only to town administration and enforcement. For example, Wis. Stat. § 90.07(2) provides that ​“application may be made to two or more fence viewers of the town where the lands lie” and Wis. Stat. § 90.09(2) requires that ​“fence viewers … file their determination in the office of the town clerk, who shall record the determination.” (emphasis added). 

Because the statute was ambiguous, the court looked at the facts and circumstances surrounding the enactment of relevant provisions the fence law to determine what the legislature intended the law to mean. Prior to 1875, the fence law clearly applied only to towns and contained no reference whatsoever to cities and villages. But in 1875, the legislature added a new section to the law that changed the definition of fence viewers to include city and village officials, and required those fence viewers to undertake the same duties in their jurisdictions as town fence viewers do in theirs. However, when the next published version of the statutes was released in 1878, the language requiring city and village fence viewers to assume the same duties as town fence viewers was omitted. The court reviewed the notes of the committee that published the statutes and determined that this omission was, essentially, inadvertent and that the legislature did not intend to change its mind and undo the 1875 statute that made the fence law apply to cities and villages, as well as towns. Thus, the Court held that, when land used for farming or grazing is located within a city or village, that city or village must administer and enforce the fence law. 

This case provides needed clarity for city and village officials with respect to their obligations under the fence law. Although most farmland is located within towns, cities and villages that contain land used for farming or grazing should be prepared to provide fence viewers, keep records of partition fence agreements and decisions, and exercise all other powers under Chapter 90. 

— Julia K. Potter