Scottish Court of Session Decisions

This was an action raised in the Sheriff Court at Ayr by the British Linen Company Bank against Miss Janet Goudie Purdie, draper and milliner, 119 High Street, Ayr.

The defender was the pursuers' tenant under a ten years' lease of her shop at 119 High Street, Ayr, which formed part of the pursuers' bank buildings.

The defender's lease provided, inter alia, as follows, viz.—“That the said subjects hereby let shall be used by the said Janet Goudie Purdie as a shop in connection with the carrying on of her business of draper and milliner, and for no other purpose.”

The pursuers sought to have the defender ordained to remove two show cases which she had fixed on the front wall of the shop referred to, and to restore the front of the property to the condition in which it was before her interference therewith.

The mode in which the show cases were fixed to the wall is disclosed in the interlocutor of the Sheriff-Substitute infra.

The pursuer pleaded — “The defender having interfered with the outside walls of the property of the pursuers as libelled, she is bound to remove said show cases, and to restore the walls to the condition in which they were prior to her interference.”

The defender pleaded—“(2) The defender having, in accordance with custom of trade, a right to erect show cases on the outside walls of her shop, the petition should he dismissed, with expenses. (3) The defender being entitled to the full use and enjoyment of her premises, leased by her from the pursuers, and no infringement of the terms of the lease having been committed, she is entitled to absolvitor, with expenses.”

Proof was led, the import of which, for the purposes of this report, is sufficiently disclosed in the findings in fact in the following interlocutor granting decree in terms of the prayer of the petition, pronounced by the Sheriff-Substitute ( Shairp) on 20th December 1904, viz.—“The Sheriff-Substitute, having heard parties' procurators and considered the cause, finds in fact (1).…, (2) That, without the consent of the pursuers, the defender, on or about 15th June 1904, erected the two show cases in front of said premises of the size and in the position detailed on (a plan lodged in process), and that she has so maintained them since the foresaid date without the consent of the pursuers: (3) That each of the defender's show cases is attached by screw nails to two holdfasts driven into the concrete pavement in front of the premises in question, and that at the top each show case is held in position by attachment to a metal pin about-half an-inch in diameter inserted inward for a distance of about two inches between the stones of the channelled ashlar front of the butts belonging to the pursuers, as shown on plan referred to: (4) That no general custom of trade has been proved to exist in Ayr under which tenants are in the habit of erecting show cases, in such positions as the defender's cases, and with similar attachments, without the consent of the proprietors of the respective subjects. Finds in law that in these circumstances the defender was not entitled originally to erect the said show cases with such attachments in the position in which they stand without the consent of the pursuers, nor is she now entitled so to maintain them without such consent. Accordingly ordains the defender within fourteen days from this date to remove the two show cases described in the prayer of the petition, and to restore the front of the property belonging to the pursuers to the condition in which it was prior to the defender's interference therewith, and …”

The defender appealed to the Sheriff, who adhered, on 6th April 1905.

The defender appealed to the Court of Session, and argued—The defender was only making reasonable use of the premises let, and all reasonable uses were authorised by the lease—Rankine on Leases, 2nd ed. 225; Stirling v. Strang, February 26, 1857, 19 D. 568; Keith v. Reid, June 16, 1870, 8 Macph. (H.L.) 110, 7 S.L.R. 659. Section 159 of the Burgh Police (Scotland) Act 1892 (55 and 56 Vict. cap. 55), relied on by the pursuers, did not affect the present question—Burgh Police (Scotland) Act 1902, section 381, subsection 49, M'Millan v. Bennet, February 2, 1895, 22 R. (J.C.) 23, 32 S.L.R. 295.

Argued for the respondents—The erection of the show cases in question was not such a reasonable use of the premises as could be held to have been in the contemplation of parties in entering into the lease—Dickson on Evidence, 1093— Brown v. M' Connell, June 7, 1876, 3 R. 788. In the absence of consent obtained in terms of the Burgh Police (Scotland) Act 1892, section 159, the erection of show cases was prima facie unlawful, and the pursuers might be held liable for the wrong done; therefore, apart from injury to their property, the respondents were entitled to decree.