Dougan v. H. J. Grell Co.

• Citation: 182 N.W. 350,174 Wis. 17
• Parties: DOUGAN v. H. J. GRELL CO.
• Decision Date: 05 April 1921
• Court: Wisconsin Supreme Court

174 Wis. 17

182 N.W. 350

DOUGAN

v.H. J. GRELL CO.

Supreme Court of Wisconsin.

April 5, 1921.

Appeal from Circuit Court, Dodge County; Martin L. Lueck, Judge.

Action by J. W. Dougan against the H. J. Grell Company. From judgment for defendant, plaintiff appeals. Affirmed.

The plaintiff's predecessor in title of a farm about seven miles south of Beaver Dam, six miles from Columbus, in a dairy community in Dodge county, on October 31, 1894, made a written agreement with Charles Christians and J. W. Puerner whereby there was leased to them for 99 years at an annual rental of $5 about one-half of an acre from the northwest corner of the farm. Two copies of such lease were signed by the respective parties. Each copy contained the following: “Said premises to be used only for the purpose of manufacturing butter and cheese.” In the copy of lease retained by the lessees this provision immediately followed the above quotation: “With the privilege of erecting buildings suitable for that purpose.”

Shortly afterwards a factory building was erected, about 20 by 40, on a stone foundation which extended a foot and a half into the ground. Subsequently a receiving station was added and a cement floor laid beneath the entire factory building. A barn was also moved onto the premises and placed upon a similar stone foundation.

On January 2, 1899, a similar lease was made to Charles Christians alone of a strip of land 40 feet in width alongside the factory premises, also at a rental of $5 per annum. This lease contained a provision, “Said premises to be used for the purposes of a residence for butter makers;” and also the following provision, “If the lessee shall underlease the said premises * * * without the consent of the lessor, then the lessor may expel the lessee from the premises forthwith,” and “if the party of the second part * * * shall use said premises or any part thereof, contrary to the conditions herein contained, * * * this lease shal be void as to the party of the second part, and the party of the first part * * * shall be entitled to the immediate possession of said premises without hindrance or delay.” A house about 26 by 16 was built on a stone foundation. There are other buildings on the two pieces of land without having any substantial foundations.

The defendant came into possession of the premises by subsequent assignments from the lessees. For about 2 1/2 years prior to December, 1920, the time of the trial, the factory and the other buildings were not used for any purpose whatsoever. On January 17, 1920, the defendant made a verbal lease with one Edward Maasche, who was employed on one of the neighboring farms, for the use of the dwelling house at the rate of $5 per month.

The buildings on the premises have been assessed as personal property and taxes thereon have been paid by the lessees, who have also kept the buildings insured.

May 5, 1920, the defendant sent to plaintiff a check for $10 for the purpose of paying the rent then due for the two separate pieces of land. May 8, 1920, the defendant wrote to plaintiff returning the $10 check and saying as follows:

“You have violated the terms of the lease dated October 31, 1894, made between my father, Samuel W. Dougan, and Charles Christians and John W. Puerner, by failing to use the premises described in that lease for the purpose of manufacturing butter and cheese. You have also violated the terms of the lease dated January 2, 1899, made between my father, S. W. Dougan, and Charles Christians, in that you have failed to use the premises therein described for the purpose of a residence for butter maker. By reason of such violations, I now declare both of said leases forfeited and of no further force or effect.”

Public notice was given by the defendant by posting of bills in the neighborhood of the premises, the material parts of which notice are as follows:

“Auction! The undersigned will sell at public auction the cheese factory and barn with contents, also good house, on Friday, May 14, * * * on the premises. House carries with it a lease of 99 years and is in good condition. The factory buildings contain a large amount of good lumber. Machinery, etc. The sale will also include a 20 h. p. boiler and bridging, milk cans, Twentieth Century milk heater, pump, piping, shafting, pulleys and hangers, milk scales, steam milk tester and odd lots of cheese factory and creamery supplies. * * * Creamery buildings must be moved but not the house. * * * H. J. Grell Co., Props. * * *”

Before the time for such sale plaintiff commenced this action, asserting, in substance, the facts concerning the leases as above stated; that there had been no use of the factory or buildings for some time, and that the premises had been abandoned for the purposes for which the lease was entered into; as to the dwelling house, that it was the intention of the parties to make it a permanent fixture to said land and that the said dwelling is now a part of the real estate; that it had not been used for more than two years prior to the commencement of the action as a residence for butter makers; recites the sending of the letter by defendant as above stated; that defendant claims ownership of the factory building, dwelling house, and other buildings on the premises and threatens to sell the same; and sets out in full the notice of auction as specified above; that to permit the defendant to so sell or remove any or all of said property from the premises and the permanent fixtures thereon will cause irrevocable injury to the real estate; that the occupancy of the dwelling house by one not a butter or cheese maker is without plaintiff's consent and a violation of the terms of the lease of January 2, 1899.

Plaintiff demanded judgment, first, that by reason of defendant's acts above recited it should be adjudged to have forfeited all of its title and interest to each of the said leases and that they should be declared null and void; that the court determine what of the machinery or property described in said notice of sale are permanent fixtures and that the court determine that the boiler, bridging, pump, and other articles are all permanent fixtures; and, third, that the defendants be enjoined and restrained from removing or attempting to take possession of the factory buildings, barn, house, or any of the permanent buildings on the real estate, or of the permanent fixtures in the factory.

Defendant by answer denied that there was any intention at the time of the construction of the factory building to make it a permanent fixture; denies abandonment of the premises; and alleges that it continued to pay rent upon the premises which had been accepted by the plaintiff. It also makes similar allegations as to the dwelling house; admits the receipt of the letter of May 8, 1920, above set forth; admits that it asserts and...