Sappington v. L. R., M. R. & T. R. R.

Eaicin, J. i!.oadVcom PLiability -agre^me’ts to build a-oad bed. This Court held, in Smithee, Comm’r, v. Garth, 33 Ark., 17, that there was no law authorizing the issue of “Arkansas State Levee Bonds.” Hence they were , void, and their acceptance by the company imposed upon it no duty for the neglect of which it could be held amenable to the State or any individual. . The agreement by the Little Rock, Pine Bluff and New Orleans Railroad Company, in consideration of a right of way over plaintiffs’ land, to so build their road bed as to. make it efficient as a levee to protect the lands, was connected with, and in furtherance of, the legitimate object of the company, and imposed upon it, as an artificial person, a personal obligation, for a breach of which it would have been liable to an action at law for damages. But, as set forth, the construction of the levee was not a condition of the grant of right of w&y, either precedent or subsequent. The right of way became the property of the company, and upon consolidation, passed to the Texas, Mississippi and ' Northwestern Railroad. Upon the consolidated road the •obligation became also binding; and still is, if it be alive ; not as “pains or penalties,” under Section 4969 of Gantt’s Digest, -but upon general principles of law and equity. These words refer to forfeitures and pecuniary punishments alone, when applied to corporations. The sense of pains is obvious. The word is not technical. For “penalties'’ ’ see Bouvier’s Die, in verbum. roads : chasers of, their obliga- • How the defendant corporation came into possession and •control of the right of way is not definitely stated. It . ■ pears to be a purchaser. As such it would not, as a A 1 ■of law, by virtue of its purchase of the property and •chises of the said consolidated company, become bound to ■fulfill its personal obligations as distinct from those which were liens upon the property. If the purchasing company knew of any equities against the other in favor of third persons, and bought subject to him, it might make a different •case, and perhaps afford ground for some appropriate relief in Chancery. But the obligation is not transferred ipso facto ■on the purchase. Otherwise no sale could ever be made of ■a railroad, from fear of coming into a damnoso hcereditas. The same reasoning applies to the acts of the defendant in altering the road bed. In the absence of any allegations •of notice at the time of purchase that the road bed was intended for a levee, and built as such in consideration of the right of way, they would not be answerable for any acts •done on this part of the road bed, which it might have done if the right of way had been bought or condemned in the usual way. Affirm the judgment.