Smith v. Jensen , 156 Ga. 814 ( 1923 )

Hines, J.

(After stating the foregoing facts.)

1. In the absence of an express provision to the contrary, the lease of a building or a portion thereof, for business purposes, gives the lessee-the exclusive right to the use of the outside walls of that portion of the building embraced in his lease for advertising purposes. The tenant has the right to make reasonable use of the front walls of the leased building for such purpose. The tenant can put any sign or signs thereon which will work no injury to the freehold. The landlord in such a lease retains no right to permit signs or advertisements of other persons to be put upon the outside walls of the leased building. Riddle v. Littlefield, 53 N. H. 503 (16 Am. R. 388); Broads v. Mead, 159 Cal. 765 (116 Pac. 46, Ann. Cas. 1912C, 1125); Forbes v. Gorman, 159 Mich. 291 (123 N. W. 1089, 25 L. R. A. (N. S.) 318, 134 Am. St. R. 718); Snyder v. Kulesh, 163 Iowa, 748 (144 N. W. 306, L. R. A. 1915B, 1057, Ann. Cas. 1916C, 481); Lowell v. Strahan, 145 Mass. 1 (12 N. E. 401, 1 Am. St. R. 422); Salinger v. North Am. Woolen Mills, 70 W. Va. 151 (73 S. E. 312, 39 L. R. A. (N. S.) 350); Baldwin v. Morgan, 43 Hun (N. Y.), 355; Law v. Haley, 9 Ohio Dec. 785; Scott v. Pitts, 6 L. J. N. S. 368; Carlisle Cafe Co. v. Muse, 77 L. T. Rep. N. S. 514, 67 L. J. Ch. N. S. 53; Goldfoot v. Welch, L. J. 1914, 83 Ch. (Eng.) 360; Joseph v. London County Council, 111 L. T. N. S. (Eng.) 276; Stahl & Jaeger v. Satenstein, 233 N. Y. 196 (135 N. E. 242, 22 A. L. R. 798); Hope v. Cowan (1913), 2 Ch. 312, 82 L. J. Ch. N. S. 439; Hilburn v. Huntsman, 187 Ky. 701 (220 S. W. 528); 16 R. C. L. Landlord & Tenant, § 226. This does not authorize the tenant to lease to strangers space on the walls or roof of the leased buildings for advertising purposes. Louisville Gunning System v. Parks, 13 L. R. A. (N. S.) 587 (126 Ky. 532, 104 S. W. 331); Forbes v. Gorman, supra. The lessee of a part of a building has no right to place signs on the outside wall not enclosing his part of the leased premises. Broads v. Mead, Salinger v. North Am. Woolen Mills, supra. Where there are different tenants of the several stories or floors of a building, the tenant of one floor has no right to prevent the tenant of another floor from placing signs upon the walls outside of his story or floor. Broads v. Mead, supra. The tenant, in the absence of a restriction, has the right to use the roof, as well as the walls, of a building leased by him, for advertising purposes, provided he does no injury to the freehold. Alfred Peats Co. v. Bradley, 149 N. Y. Supp. 613. It has been held that the tenant would not have such right if he only leased a storeroom and part of a basement in a one-story building. MacNair v. Ames, 29 R. I. 45 (68 Atl. 950, 16 Ann. Cas. 1208). The right of the tenant to use the walls of a building for advertising purposes can not be so exercised as to cause material injury to the building. Hayman v. Round, 82 Neb. 598 (118 N. W. 328, 45 L. R. A. (N. S.) 623). Thus, by the great weight of the authorities, a tenant who leases an entire building has the right to use the outer walls thereof to advertise his own business. Neither his landlord nor strangers can interfere with this right; and injunction will lie to prevent the landlord or others from interfering therewith. Goldfoot v. Welch, 1 Ch. (Eng.) 213, 83 L. J. Ch. 360. Hilburn v. Huntsman, supra.

2. But the plaintiff insists that his right of ingress and egress to and from the premises leased by him in No. 82 Whitehall Street, through the stairway between Nos. 78 and 80 Whitehall Street and the hallway through the building leased by the defendant, gives to him the right to attach his signs to the walls of the building leased by her. We can not agree to this view. The right of ingress and egress does not confer upon the tenant any other use of the stairway and hallway. The right to use the stairway for the purpose of ingress and egress does not confer upon the tenant the right to make any other use of these passages. Certainly the right of ingress and egress would not give the tenant of portions of the other building the right to attach signs to the outer wall of the building leased by the defendant. The right of the defendant to use the building leased by her is subject to only one restriction, and that is the right of the plaintiff to use the stairway and hallway in her building in going 'to and returning from the rooms occupied by him as dental offices in the other building. After considerable search and research, we have been unable to find any ease in which the exact point involved in this case has been decided. The nearest approach to such a case are cases involving the right to use party walls. In Lappan v. Glunz, 140 Mich. 609 (104 N. W. 26), it was held that the party to a party-wall agreement could not be restrained from using his side of the wall for advertising purposes because of his covenant that the other party who built the wall should have peaceful possession of one half of a foot of the former’s lot, there being a further covenant that the wall when constructed should be the common property of both parties in equal proportions. In Shiverick v. Gunning Co., 58 Neb. 29 (78 N. W. 460), where a party wall was erected upon the boundary line between two lots, the owner of each lot paying one-half of the cost, and one erected a building on his lot joining the same to the party wall, it was held that the other owner had the right to use or lease the face of the wall on his lot for advertising purposes. These cases are different from the instant case. Party walls are owned by the owners of the lands on which they are built or which they adjoin. Both owners are entitled to the use of such walls. Each owner is entitled to use his part thereof in any reasonable way. In case of the mere right of one to use a stairway or hall in going to and returning from premises leased in another building, the party does not own such stairway or hall. He does not own the walls thereof. The use of the walls is not necessary to his enjoyment of the right of ingress and egress. Such right does not confer upon him another and additional right. He cannot use the stairway or hallway for any other purpose or to exercise any other right. He can not place a show-case in the stairway. He can not fasten signs to the walls of the building in which the stairway is located..

We have seen that a tenant in a building, by the bare right of ingress and egress to and from premises leased by him therein, has no right to place signs at the doorways, or in the hallways and stairways of the building, or attach signs to the outer walls except such portions as are embraced in the premises leased. If this is so, much less has a tenant of premises leased by him in one building the right to place signs at the doorway and in the hallway of another building owned by one other than his landlord, because of his hare right of ingress and egress through the latter building to the premises leased by him in the first. The mere right of ingress and egress through the second building gives to the tenant of the premises in the first building no such signal rights. If the stairway and hallway were owned in common by the owner of the building in which the plaintiff has his offices and by the owner of the building leased by the defendant, such owners or their tenants would have the customary and reasonable right to use the walls along the stairway for placing thereon signs and advertisements. Bennett v. Seligman, 32 Mich. 500. So we are of the opinion that the right of ingress and egress through this stairway and hallway does not give to the plaintiff the right to maintain a show-ease at the foot of the stairway, or to attach signs to the walls of the stairway, or to fasten signs to the outside wall of the building leased by the defendant.

3. The plaintiff also insists that he has a prescriptive .right to maintain his signs and show-case as they now exist, because he placed them in their present positions more than seven years ago, and has continuously and notoriously used them in their present places for a period extending over seven years. An incorporeal right, which may be lawfully granted, may be acquired by prescription. Civil Code (1910), § 4170. But what length of time must run in order for the use to ripen into a prescriptive title? At the common law this right rested upon use and enjoyment "for a time whereof the memory of man runneth not to the contrary.” By Lord Tenterden’s act the time in England was shortened and fixed at twenty, thirty, forty, and sixty years for the different classes of cases. 19 C. J. 873, § 17. By the provisions of our Civil Code, the time has been shortened to seven years when the right is claimed under color of title, and to twenty years when the prescription is based on possession alone. Civil Code (1910), §§ 4168, 4169. By analogy the period of use and enjoyment which will give an easement to one in the land of another must run for twenty years or longer, unless under color of title. Bealy v. Shaw, 6 East, 208; Wimpey v. Smart, 137 Ga. 325 (73 S. E. 586); Seaboard Air-Line Ry. v. Sikes, 4 Ga. App. 7 (60 S. E. 868). If the other necessary elements of prescription were shown, the plaintiff’s assertion of a prescriptive right fails because of lack of sufficient length of use and enjoyment.

4. Nor does .the plaintiff make a case of a parol license to him from the landlord of the defendant to enjoy a permanent easement, and the making by him, in pursuance of such license, of large investments in order to enjoy the easement. Plaintiff erected these signs and placed his show-case in this building when he was in possession of his offices under a lease for a short term of years. If a local license had been given him by the owner of the building leased by the defendant to put. signs and a show-case in that building, it was necessarily a temporary easement, measured by the plaintiff’s term for which he rented his office, and not a permanent easement. For this reason' the plaintiff does not make a case on this theory. Cook v. Pridgen, 45 Ga. 331 (12 Am. R. 582); Hiers v. Mill Haven Co., 113 Ga. 1002, 1004 (39 S. E. 444). Furthermore the plaintiff by his pleadings and proof makes no case of license, express or implied, temporary or permanent.

5. The wrong ox was gored in this case. By her answer in the nature of a cross-bill the defendant prayed that the plaintiff be enjoined from maintaining his signs and show-case in and on the building leased by her. If any one was entitled to a temporary injunction, it was the defendant, and not the plaintiff.

Judgment reversed.

All the Justices concur.