David G. Janes Co. v. Weed

RosenbeRRY, C. J. So far as the contention made by the appealing defendants that the bowling alleys were not so affixed to the realty as to become a part thereof, this case [404] is ruled by Brunswick-Balke-Collender Co. v. Franzke-Schiffman R. Co. 211 Wis. 659, 248 N. W. 178. The building in this case was erected especially to accommodate the bowling alleys and the alleys were affixed to the realty in the same way that they were affixed in the Brunswick-Balke-Collender Co. Case. It is claimed, however, on behalf of the appellants, that the plaintiff always regarded the bowling alleys as personal property. This claim is based upon the fact that by the terms of the policies of insurance, which were taken out originally by Weed, the bowling alleys were separately insured, and upon the further fact that on March 19, 1931, the defendant Weed attempted to make a sale of the bowling-alley equipment to one Melik, upon which contract Melik paid down $50, which amount was credited by the plaintiff upon the purchase price of the premises. The proposed sale fell through, and it is argued that the acceptance of the $50 payment in some way operated as a severance so as to estop the plaintiff from claiming that the alleys in question were so affixed to the real estate as to become a part of it. It is considered that these circumstances have very little if any significance. The fact that a seller having a lien upon property might consent to a severance upon payment of the value of the severed property in no way disturbs his right as it existed prior to the making of the proposed arrangement, and the trial court correctly so concluded. In the view which we take of the case it is not necessary for us to consider other questions raised. By the Court. — Judgment affirmed.