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High court rules city can settle fence disputes

February 2, 2019

MADISON -- The city of Watertown has the authority to settle disputes between neighbors over who maintains fences that divide their properties, the Wisconsin Supreme Court ruled Thursday.

The unanimous opinion upholds decisions by an appeals court and Jefferson County Circuit Judge Weston in a suit brought by Dr. Stuart and Janet White. The Whites claimed that state statutes made cities, as well as townships, responsible for procedures to settle fencing disputes and administer remedies.

The Whites have fenced grazing land within the city on South Concord Avenue. The property has been continuously farmed or grazed since 1839. Since 1985, the Whites have had livestock there. Dr. White is a veterinarian.

Since 2010, the Whites have asked the city to help them collect from their neighbors the cost to maintain their required fencing. The Whites cited state law that requires adjoining landowners to share fencing costs, and provides a process to resolve disputes between landowners.

A city alderman went to the Whites’ property to look at the partition fences. However, because the city does not believe that state law gives it authority to determine and allocate fencing costs, the city never went beyond just viewing the White’s fences.

The city attorney invited the Whites to test their interpretation of state law in court and the Whites did.

Weston agreed with the Whites. The city appealed contending the state law only specified towns in its enforcement procedures. However, last year, the appeals court concludes that cities and towns have the authority over fence dispute that the Whites claimed.

The city appealed again contending that the law dating to 1849 would have to be changed in order to give cities the authority the White claims it already has.

While the state’s high court found that the city’s argument was “well received” it would look at the text, context and structure of the statute to determine its plain meaning.

Neither the city nor the Whites disagreed on the need for fences that partition adjoining property and that property owners along the fence must share in its costs either before construction or after.

However, the city clung to the position only towns have authority to settle fence disputes because under state law such dispute begin with a complaint to a “fence viewer of the town.”

Fence viewers can certify to a town clerk that an adjoining property owner is responsible for the share cost of fence expense. The town clerk can issue a warrant payable to the person to whom the files the certificate.

While the city’s argument is plausible it is not sustainable through a view of the statutes, the court noted.

Town fence viewers can only operate in their respective towns. The same applies to city fence viewers.

An accompanying statutes states that town may include “cities, villages, wards or districts.”

Applying this statutes eliminates the ambiguity of the statute the city claimed make it unenforceable, according to Thursday’s opinion.

“With the help of (this statute), a complaining landowner in the city may file his certificate of fence-related expenses with the city clerk instead of a town clerk,” Justice Daniel Kelly wrote in the 23-page opinion.

The law the city relied on changed in 1875 to simultaneously give city and village officials authority to enforce landowner duties within their boundaries. The statute was amended again in 1878 reinforcing a city’s role in fence disputes.

“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,” Kelly wrote.

The opinion allows the Whites to ask the city to determine what fencing expenses are the responsibility of their adjoining neighbors.

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