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2010AP355 Heritage Farms, Inc., v. Markel Ins. Co.

Forest fires; damages

Section 26.21 does not mandate that double damages be awarded in situations where a private owner’s property is destroyed by a forest fire which occurred though negligence.

“The legislature’s use of the words ‘may’ in subsection (1) and ‘shall’ in subsection (2) in describing the liability of an individual responsible for causing a forest fire demonstrates the legislature’s awareness that the terms ‘may’ and ‘shall’ have different denotations and its intention that the words be given their precise meaning. See Karow, 82 Wis. 2d at 571. Had the legislature intended ‘may’ in subsection (1) to mean ‘shall,’ the legislature would have used the word ‘shall’ as it did in subsection (2). Because there is no indication of a legislative intent to give the word ‘may’ any thing other than its ordinary meaning, no other construction is warranted. See City of Wauwatosa, 22 Wis. 2d at 184. Accordingly, we reject Heritage Farms’ contention that ‘may’ in subsection (1) should be construed as ‘shall,’ and hold instead that the legislature intended that ‘may’ be construed as permissive, not mandatory.”


Recommended for publication in the official reports.

2010AP355 Heritage Farms, Inc., v. Markel Ins. Co.

Dist. IV, Waushara County, Finn, J., Sherman, J.

Attorneys: For Appellant: Thomsen, Mark, Brookfield; Kaas, Sarah F., Brookfield; Dutcher, Clay Ryan, Wautoma; For Respondent: McCoy, John V., Waukesha; Parish, Brian D., Waukesha

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