| Wis. | Feb 1, 1916

BauNes, J.

On the findings of fact made the plaintiffs were entitled to judgment. The owners of fifteen of the twenty-seven so-called shares of stock are plaintiffs. Plaintiffs also include four of the six owners of this stock. There was no agreement to continue the business for any specified length of time, and in fact it has been continued since 1898. No equitable consideration has been suggested which would justify the refusal of relief. The building cannot be partitioned and must therefore be sold. It does not follow that the purchaser will not continue to put it to the uses to which it *300has been devoted in the past. If there is any demand for such an establishment in the community, it is worth more for the use to which it has been put than it would be for purposes of removal. The plaintiffs and defendants are owners of the building as tenants in common. Higgins v. Riddell, 12 Wis. 586. The proceeding is authorized under sec. 2327a, Stats. A sale is authorized under sec. 232Tb where the property involved is not susceptible of division.

The court found that under the parol agreement in reference to the land such land was to revert to the owners when the building placed thereon was no longer used as a cheese factory. This finding is certainly sustained by the evidence. It may be that the association took possession of the land under a void contract and that such contract has been validated by performance. If such is the case, the rights of the association must be measured by such contract. There is no showing whatever that the association in any manner secured any greater rights.

Neither can it be held on the evidence that the building is a fixture which is the property of the owners of the land on which it stands and therefore no right of removal exists. While physical annexation is an important consideration in determining whether an article or building is a fixture, the intention of the parties is the controlling consideration in determining the question. Rinzel v. Stumpf, 116 Wis. 287" court="Wis." date_filed="1903-01-13" href="https://app.midpage.ai/document/rinzel-v-stumpf-8187488?utm_source=webapp" opinion_id="8187488">116 Wis. 287, 93 N. W. 36; E. M. Fish Co. v. Young, 127 Wis. 149" court="Wis." date_filed="1906-01-30" href="https://app.midpage.ai/document/e-m-fish-co-v-young-8188412?utm_source=webapp" opinion_id="8188412">127 Wis. 149, 106 N. W. 795; Baringer v. Evenson, 127 Wis. 36, 106 N. W. 801. Here the court found on sufficient evidence that there was no intention that the building should be regarded as a fixture. The building was in possession of the owners through their tenant, and the court properly held that under the facts it did not originally belong to the landowners nor revert to them thereafter.

By ihe Gourt. — Judgment reversed, and cause remanded with directions to enter judgment as prayed for in the complaint.