By an assignment in April 1946, the plaintiff acquired the lease of a shop and it tobacconist’s business. The premises were on a street with a ground floor room and a flat roof top. On the two front sides the shop was bounded by streets and on one side of the back was an adjoining building of three stories. During the lease, the defendants, wholesale tobacconists, displayed three advertising signs on the wall with the adjoining building about the shop. The signs made of sheet metal mounted on a frame which fixed against the wall but with the mounting, it extended by 4 inches into the air space above the flat roof of the shop. In April 1948 the landlords gave to the owners of the adjoining building consent to a large new sign in place of the existing signs. In December 1948, the landlords granted a new lease of the shop to the plaintiff. By clause 1 of the lease, which contained the parcels, the premises devised to the plaintiff were expressed to be subject to ‘all that right so as wants to any of the adjacent property, and by clause 2 the plaintiff covenanted not to permit any sign or advertisement to be posted on or over any part of the exterior at the shop and premises. In January 1950, no new sign having yet been affixed on the adjoining building, its owners again obtained the permission of the landlord of the plaintiffs shop for the defendants to substitute a new large advertising sign for the existing the smaller ones. A new sign was elected by the defendants in 1950 with the plaintiff’s knowledge. Its total length was about 20 feet, and the maximum distance by which part of the sign projected from the wall and over the building was 8 inches. From time to time the defendants servants had access to the sign, from the plaintiff’s shop and with his knowledge, to carry out maintenance work and repairs. In December 1953 as a result of a business dispute between the plaintiff and the defendants, the plaintiffs asked the defendants to remove the sign. After the dispute was settled, the plaintiff on being asked by the descendants whether he still wanted the side removed, replied that it could remain. Further arose between the parties, and the plaintiff gave notice to the defendant to remove the sign, and the defendants having failed to do so now brought an action against them for trespass.
Held: McNair J granted a mandatory injunction ordering the defendants to remove a sign which projected only 8 inches over the plaintiff’s property.
1 The air space above the shop was part of the premises demised to the plaintiff on a true construction of the lease of December 1948 there was nothing to displace the prima facie conclusion that the demise of the premises included the air space above the shop;
2 when in January 1950, the landlords consented to the substitution of the new sign, they could not derogate from the demise of the airspace in December 1948 to the plaintiff;
3 the plaintiffs conduct in allowing the sign to remain on the wall of the adjoining building from 1950 onwards did not estop him from subsequently requiring it to be removed, because a be hard, as most, mary represented to the defendants but he would not object to the sign in future and representation of an intention did not give rise to an estoppel; and on the facts, the descendants had not been induced by the plantiff’s conduct to act to their prejudice to such an extent as to oblige them to continue to display the sign:
4 The invasion of the plaintiff’s air-space by the sign amounted to a trespass on the part of the defendants and not merely to a nuisance. On the facts of the case, although the injury to the plaintiffs legal rights was small, he was entitled to a mandatory injunction requiring the defendants to remove that sign.
McNair J
[1957] 2 QB 344, [1957] 2 All ER 343
England and Wales
Updated: 12 July 2021; Ref: scu.268225
