Scottish Court of Session Decisions

If the landlord objects to the removing of a print, the objection may be so ridiculous that we would not listen to it. We must attend to the case in hand. My opinion is that it is not the right of the tenant to remove pictures wholesale as was done here. I venture to put the case of a mansion-house in which there might have been a picture gallery. Is it the right of the tenant to take these pictures down from the walls and store them away? That may be a very strong case the other way. And that may bring it to this—Is the landlord's complaint so trifling that we would not entertain it? Mr M'Clure referred to Addison on Contracts, p. 723, and we were told the tenant would be responsible for any damage. Well, I should doubt if that were true if storing them away were a reasonable use, for she is not responsible for the reasonable use, and there is no limit to the reasonable use. Although pictures are as a rule exposed to great risk in being removed, even the largest may be removed without injury. But is the landlord bound to allow them to be exposed to any risk? That is no part of the contract. The only thing of which he takes the responsibility is the tenant's reasonable use.

The only question before us is one of relevancy where the complaint is reasonable, and according to the landlord's right I am of opinion that it is reasonable, and that the pictures should be ordered to be replaced and interdict granted against more being removed.

Lord Trayner—This case arises out of a dispute between two ladies— one of them the lessor, and the other the lessee, of a furnished house. The latter (the lessee) has removed a number of the pictures from the places which they occupied in the house at the time she took possession of it; this is resented by the lessor, who asks us to ordain the defender to put the pictures back to their former position, and to interdict her from removing them again. It is now conceded by the pursuer that none of the pictures have been damaged by their removal, and that no damage will be sustained by them in the place where the defender has put them. This concession is made in respect of the opinion expressed by experts, who have examined the pictures since the action was raised, and been made acquainted with the grounds of the pursuer's complaints. I think that the pursuer might have been satisfied with getting this report from the experts, and have proceeded no further with this case. But she insists on a judgment deciding the abstract question that the lessee of a furnished house is not entitled to take down the pictures hanging on the walls without the leave of the lessor. Well, all I shall say on that matter is that I know of no authority or any good reason for that proposition, and I am not prepared to affirm it. The pursuer's counsel, indeed, would not maintain it. He admitted that a lessee might remove two or three pictures; he might perhaps remove half-a-dozen, but he hesitated to admit that the lessee might remove a score. Now, are we to determine that a lessee may lawfully remove nineteen pictures, but acts wrongfully if he removes twenty? I think the Supreme Court is not intended to settle frivolous questions of that sort. If the pictures or a single picture had been subjected to damage, or treatment that threatened damage, the pursuer might have been listened to. But that is now out of the case. I think the appeal should be dismissed.

Lord Moncreiff—It appears from the Sheriff-Substitute's note that at the hearing before him counsel for the pursuer maintained that the pursuer was entitled to the interdict craved as matter of abstract legal right, and apart from the question of actual or possible damage to the paintings and engravings mentioned on record.

When the case first came before us I understood that the appellant was desirous of proving that the pictures which had been removed from the walls by the defender had been or were likely to be damaged, but counsel has now departed from that position, and desires without proof a judgment in the pursuer's favour upon the precise ground mentioned by the Sheriff-Substitute. We must therefore assume that no damage has been caused or is to be apprehended in consequence of the removal of the pictures from the walls.

That being so, I am of opinion that there is no principle or precedent for deciding that when a house is let furnished, the tenant is not entitled to shift the furniture or the pictures so as to suit his own occupancy, provided always that at the termination of the lease he replaces the furniture and the pictures in the position which they previously occupied, and makes good any damage done to the walls. If it could be proved that there was serious risk of injury to the furniture or pictures if removed, it may be that the landlord would be entitled to interdict, but the condition of the present argument is that in this case no injury has been caused or is to be apprehended, and therefore the landlord has no interest, even if he had the right, to insist on their being replaced.

The pursuer, while admitting that the defenders might be entitled to remove a few of the pictures, maintained that she is not entitled to remove a hundred of them. But no particular number is suggested beyond which removal would constitute a violation of the lease, and I find no termini habiles on which we could pronounce an operative interdict.