By article 8 of an agreement between the North Eastern and North British Railway Companies, scheduled to and incorporated with ‘the North Eastern and Carlisle Amalgamation Act 1862,’ it is provided:-‘For the purpose of maintaining and working in full efficiency in every respect the East Coast route by way of Berwick for all traffic between London and other places in England, and Edinburgh, Leith, Glasgow, and other places in Scotland, the North British Company shall at all times hereafter permit the company ( i.e. the North Eastern Company), with their engines, carriages, waggons, and trucks, to run over and use the North British Company’s railway . . between Berwick and Edinburgh and Leith, all inclusive . . subject to the payment by the company to the North British Company for such user, of such tolls, rates, or dues, or such share or proportion of tolls, rates, or dues as have, or has been, or shall from time to time be agreed upon by and between the said companies, or in default of such agreement, as shall be fixed by arbitration in manner hereinafter provided.’
The passenger trains upon the East Coast route are made up mainly of carriages which are the joint property of the three companies, and prior to 1869 the North British Company supplied those trains with engines and guards upon its own line. From 1869 to 1894 the engines and guards were provided by the North Eastern Company under an agreement between the companies, terminable on three months’ notice, by which a mileage rate for the use of the North Eastern engines was payable by the North British Company.
In 1894 the North British Company raised an action against the North Eastern Company, in which they sought declarator that they were entitled to resume the haulage of the existing service of through trains upon their own line. The defenders maintained that these trains had been run by them as their trains in virtue of their running powers, and that they were not bound to hand them over to the pursuers.
The First Division of the Court of Session assoilzied the defenders.
On appeal the House of Lords reversed this judgment and dismissed the action, holding that neither party had an absolute right to control the through traffic, and that, failing agreement, the regulation of the exercise of the defenders’ running powers was a matter for the decision of the Railway Commissioners.
Lord Chancellor (Halsbury) and Lord Watson, Macnaghten, Shand, and Davey
 UKHL 179, 34 SLR 179
Updated: 27 April 2022; Ref: scu.634028