Hilburn v. Huntsman

220 S.W. 528, 187 Ky. 701, 1920 Ky. LEXIS 191

• Court: Court of Appeals of Kentucky
• Decided: April 23, 1920
• Status: Published

Opinion

Opinion of the Court by

William Rogers Clay, Commissioner

Affirming.

On May 9, 1917, T. C. Hilburn rented from Mrs. W. A. Payne a store room in tbe town of Scottsville for the period of one year, with tbe privilege of five. In this room be conducts a store called “The Grand Leader.” Tbe upper part of tbe building is occupied by Huntsman & Dixon, who are engaged in tbe business of buying and selling oil leases. ,Across tbe front of tbe building is a lintel which is about sixteen feet long and fifteen inches wide. Pour or five inches of the lintel extend below the ceiling of the store room occupied by Hilburn. The lintel is about four feet above a metal awning which extends over the sidewalk. Some months ago, Huntsman & Dixon had a sign painted on the lintel, for which they obtained the permission of the agent of the owner of the building. Thereupon, Hilburn brought suit against Huntsman & Dixon to require them to remove the sign, on the ground that they had trespassed on that portion of the building occupeid by him, and had seriously interfered with his business. Having been denied the relief prayed for, Hilburn appeals..

The principles of law governing a case of this kind are well settled. In the absence of a contrary provision in the lease, the lessee has the exclusive right to. the use of the outside walls of the portion of the building covered by his lease, for advertising purposes, to the exclusion of a lessee of another part of the same building. Carlisle Cafe Co. v. Muse, 77 L. T. N. S. (Eng.) 515, 46 W. R. 107, 67 L. J. Ch. 53; 16 R. C. L., p. 734. On the other hand he has no right to occupy with signs, or for any other purpose, the outside walls not inclosing his part of the leased premises; Salinger v. North American Woolen Mills Co., 70 W. Va. 151, 73 S. E. 312, 39 L. R. A. (N. S.) 350; and where there are different tenants of the several stories or floors of a building, the tenant of one story or floor has the right to prevent the tenant of another story or floor from placing signs on the walls outside of his story or floor. 16 R. C. L., p. 734; Broads v. Mead, 159 Cal. 765, 116 Pac. 46, Ann Cas. 1912, C 1125. For the same reason -the landlord, in the absence of restrictions in the lease, has no right to permit signs or advertisements of other parties to be placed upon the ' outside Avails of that portion of the building covered by the lease. Forbes v. Gorman, 159 Mich. 291, 123 N. W. 1089, 134 A. S. R. 718, 25 L. R. A. (N. S.) 318. Here, there was no restriction as to the use of the premises by Hilburn. That being true, the case does not turn on the fact that Huntsman & Dixon obtained permission from the landlord to paint the sign on the lintel, but on whether the sign extends below the ceiling of the store room rented by Hilburn. While it was shown that the lintel extended below the ceiling some four or five inches, it was not made to appear that the sign itself extended below the ceiling. It follows that Hilburn did not show any right to injunctive relief.

Judgment affirmed.