removed from the table. Conceding that the matter was not rebuttal, it nevertheless was admissible in the discretion of the court, if material and relevant to the issue.

12

Complaint is also made because of the court's refusal to charge the jury as requested by the defendants as follows:

"The court instructs the jury that any degree of influence over another acquired by kindness and affection can never constitute undue influence within the meaning of the law, and, although the jury may believe from the evidence that the deceased in making his will was influenced by Margaret Miller, still, if the jury further believe from the evidence that the influence which was exercised was only such as was made over the deceased by kindness and friendly attentions to him, then such influence cannot be regarded in law as undue influence. . . Affection or attachment, or mere

In this case, though

desire to gratify the wishes of another, do not destroy the validity of a will made through such impulses. you may believe from the evidence that Margaret Miller did use arguments or importunities to influence Thomas Miller in making of the will in question, still this fact, if it exists, will in no manner affect the validity of the will if the jury further believe from the evidence that such arguments and importunities did not deprive the deceased of his free agency or prevent him from doing as he pleased with his property, even though the will might not have been made in all of its provisions as it is but for such argument and persuasion."

The substance of these requests was given by the court. Among other things, the court charged the jury that the burden was upon the plaintiffs to show that the execution of the will was procured by undue influence of his wife, Margaret Miller; that "undue influence is that degree of importunity which deprives a testator of his free agency, so that the instrument executed under its operation is not his free and unconstrained act, or, to state it in other language, undue influence is any improper or wrongful constraint, urgency, or persuasion whereby the will of a person is overcome, and he is induced to do an act which he would not do if left to act freely;" that, to constitute undue influence, the influence must "destroy free agency so that the will in question was the result of the domination of the mind of

another, rather than the expression of the will and mind of the testator." The court further charged the jury:

"It is not every influence exercised over a testator which the law regards as invalidating a will. Such influence to be what is regarded in law as undue or illegal must be such as to destroy or to substantially hinder in its exercise his free agency in the matter of making his will. It must be influence amounting to moral coercion, or importunity which could not be resisted, so that the testator was constrained to do that which was against his actual will, and which influence he was unable to withstand, or too weak to resist. What amounts to such influence in any particular case is to be judged by the facts and circumstances appearing in such case. This test applies to weighing the evidence in the case. You are instructed that it is not wrongful for a person by honest advice and persuasion to influence one in the disposition of his property, or to induce a person to make a will in one's own favor by fair speech, argument, and kind conduct, if it does not amount to undue influence, as defined in these instructions. . . . Evidence has been introduced with respect to language and conduct of the deceased, both before and after making the will. This has been received for the purpose only to enable you to determine whether the decedent executed the will through undue influence or fraud. What the decedent's state of mind was before the occasion of executing the will or after its execution has nothing to do with its validity, except as it may afford evidence of his state of mind at the time of making it."

also

The court further charged the jury that, if they found that the will was made in the absence of undue influence and fraud, any feeling Mrs. Margaret Miller had toward the children of the deceased or toward the deceased himself would not invalidate the will. The court charged the jury that they had nothing to do with the equity or inequity of the disposition of the decedent's property, and that the right to dispose of one's property by will is an incident of ownership, and does not depend upon its judicious use; that the testator's children had no right in his estate which could be asserted against the disposition of his property by will; that a parent has the right to judge who is the proper object of his bounty; and that he may dispose of his property to any person

whomsoever so long as he was not coerced nor constrained

by undue influence as theretofore defined.

We think most of the rulings complained of were right, and that none were prejudicial to appellants.

ment is therefore affirmed, with costs.

FRICK and MCCARTY, JJ., concur.

The judg

TWENTY-SECOND CORPORATION OF CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS v. OREGON SHORT LINE RAILROAD COMPANY.

No. 2024. Decided July 6, 1909 (103 Pac. 243).

1. EMINENT DOMAIN-ACTION BY LANDOWNER-NOISE IN OPERATION OF RAILROAD. The interference with religious services by the annoyance from the noises in the rightful operation of a railroad and train yards near a church, without any physical interference with the church property, does not give the religious society a right of action for damages against the railroad company, under the provision of Const. art. 1, section 22, that "private property shall not be taken or damaged for public use without just compensation.” 1 (Page 244.)

2. NUISANCE-PRIVATE NUISANCE-NOISE FROM OPERATION OF RAILROAD. The interference with religious services by the annoyance from the noises in the rightful operation of a railroad and train yards near a church, without any physical interference with the church property, is not a private nuisance giving the religious society a cause of action against the railroad company. (Page 250.)

3. APPEAL AND ERROR-REVIEW-THEORY OF TRIAL IN LOWER COURT. Where an action was tried in the lower court as for damages to property without just compensation, a judgment for plaintiff cannot be sustained on review, on the theory that the acts complained of constituted a private nuisance. (Page 252.)

1 Kimball v. Salt Lake City, 32 Utah 253, 90 Pac. 395, 10 L. R. A. (N. S.) 483, 125 Am. St. Rep. 859; Hempstead v. Salt Lake City, 32 Utah 261, 90 Pac. 397.

4. NUISANCE-ACTIONS

FOR DAMAGES-QUESTION FOR JURY. The question whether the excessive noises made in the operation of railroad trains is a nuisance to adjacent property owners is one of fact and not of law. (Page 254.)

APPEAL from District Court, Third District; Hon. M. L. Ritchie, Judge.

Action by the Twenty-Second Corporation of the Church of Jesus Christ of Latter-Day Saints against the Oregon Short Line Railroad Company.

Judgment for plaintiff, defendant appeals.

REVERSED.

P. L. Williams, Geo. H. Smith, Jno. G. Willis, and H. B. Thompson for appellant.

Moyle & Van Cott and E. C. Ashton for respondent.

APPELLANTS' POINTS.

Where the laws or constitutional provisions of sister states have been adopted which have previously been construed by the supreme courts of such states, they are presumed to have been adopted in the light of their interpretation, and take with them the construction placed upon them: People v. Ritchie, 12 Utah 180, 193. Considering the fact that a provision of this general character was embodied in the Railway Clause Consolidation Act, as early as 1845 (8 and 9 Vict., Ch. 20, sec. 6), and had been adopted and construed in many states of the Union prior to the adoption of the Utah Constitution, in May, 1895, we must assume that its adoption was not a matter of original inspiration, but was suggested because of its existence elsewhere. In 1895, by reference to Lewis on Eminent Domain (2d Ed.), vol. 1, sec. 22 et seq., we find the provision adopted and construed prior to the adoption of the Utah Constitution, viz.: Penna.:

-1873, Art. XVI, secs. 3 & 8,-9 Atl. 871,-1887; Ill. :1870, Art. II, sec. 13,-102 Ill. 64,-1884; Colo. :-Art. II, sec. 15,-22 Pac. 814,-1889; Mo.:-1875, Art. II, sec. 21,-20 S. W. 658,-1892; W. Va.:-1872, Art. III, sec. 9; Georgia:-1877, Art. I, sec. 3,-11 S. E. 582,1890. We might add that we have failed to find any contrary construction which existed prior to 1895. The framers of the Constitution, therefore, must have intended the section to bear the construction which had generally been given it at the time they adopted it; otherwise they would have used different language.

FRICK, J.

This is an action for damages alleged to have been caused by the operation of appellant's trains to respondent's property used for church and other purposes.

The material facts, briefly stated, are, in substance as follows: Respondent, in 1890, erected a certain building forty by sixty feet, to which it added, in 1900, what is termed "the annex," forty by seventy feet. These buildings are used for church purposes; that is, the usual Sunday and week day services are held in them, and, in connection there with, Sunday school and other religious exercises were also conducted therein. The buildings were also frequently used for entertainments, theatricals, dances, and other gatherings, so that the buildings were used for religious purposes several times on each Sunday and sometimes one or more times during the week for other purposes. The secular meetings were held mostly on evenings, while on Sundays the religious services were conducted in the forenoons, afternoons, and evenings. Prior to 1890, when the first building was erected, the appellant, or its predecessor in interest, had constructed and operated a certain line of railroad west of and in what is known as Fourth West Street running north and south. When the railroad was first built, but one track was laid. Some years thereafter, the evidence does not disclose when, another track was added. These tracks were west of what we shall, for convenience, term the chruch property