Scottish Court of Session Decisions

In 1843 the pursuer, Mrs Waddell Boyd, purchased the property of Nellfield, lying along the sea-shore, in the vicinity of Burntisland. In the following year the Edinburgh and Northern Railway Company (now amalgamated with the defenders) applied for their Act of Incorporation. The railway was to pass along the shore, between the pursuer's house and the sea, and the company having

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agreed to make and keep up for the pursuer's behoof a convenient access to the sea for bathing and boating, the pursuer did not oppose the bill. Various proceedings then took place between the parties, whereby in the end the pursuer obtained and secured to herself and her successors a convenient access, by a passage under the railway, to the sea and the sea-shore opposite her property. The pursuer alleged that matters continued in this state until May 1865, when she accidentally heard that the defenders had a bill before Parliament to authorise a great extension of their works at Burntisland, the effect of which would be, inter alia, entirely to exclude the pursuer from the sea-shore. A correspondence ensued between the pursuer's agents and the defenders, resulting, the pursuer alleged, in an agreement whereby, in consideration of the pursuer taking no steps in opposition to the defenders' “Additional Powers Bill,” the defenders agreed to refer to two arbiters mutually chosen, or an oversman to be named by them (1), to fix and determine in what way an extended access to the sea, proposed to be given to the pursuer, should be made and maintained by the Company; (2) if such should be found impracticable, to fix the compensation due to the pursuer for loss of access to the sea; and to adjust certain other questions between the parties. The defenders obtained their bill in July 1865. The pursuer now brought this action to compel the the defenders to proceed with this reference, alleging that they had refused to proceed with it, and that they had commenced works different from those laid down in the plans lodged by them, and which would have the effect of completely cutting off the pursuer's access to the sea-shore; the passage under the railway would now open into the corner of a harbour or basin, into which all kinds of refuse would be floated by the tide, and would be of no use either for bathing or any other useful purpose. The defenders admitted their refusal to enter upon the reference, but contended that they were not bound to enter upon it, they not having carried out the plan at one time proposed by them, and the agreement having no reference to the existing circumstances.