Twenty-Second Corp. of Church of Jesus Christ of Latter-Day Saints v. Oregon Short Line R. Co.

• Decision Date: 06 July 1909
• Docket Number: 2024
• Citation: 103 P. 243,36 Utah 238
• Court: Utah Supreme Court
• Parties: TWENTY-SECOND CORPORATION OF CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS v. OREGON SHORT LINE RAILROAD COMPANY

103 P. 243

36 Utah 238

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

No. 2024

Supreme Court of Utah

July 6, 1909

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.

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 A. 871,--1887; Ill.:--1870, Art. II, sec. 13,--102 Ill. 64,--1884; Colo.:--Art. II, sec. 15,--22 P. 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.

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

FRICK, J. STRAUP, C. J., and McCARTY, J., concur.

OPINION

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 therewith, 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 church property, between three hundred and four hundred feet. The church property, upon which the buildings in question are located, consists of a parcel of ground five by fifteen rods running north and south fronting on Third North Street, which runs east and west. The westerly side line of this parcel of ground is fifteen rods, or 247 1-2 feet, east of the east margin of Fourth West Street. From this it will be seen that there was a parcel of ground fifteen rods in length between the church property and the street on which the railroad tracks were laid. About the year 1903 appellant obtained a strip of ground, by purchase or otherwise, off the west end of the fifteen rod strip, aforesaid, and also, by virtue of an ordinance, obtained permission from the mayor and city council of Salt Lake City to construct additional tracks in Fourth West Street. These tracks were laid in 1905 or 1906. The evidence disclosed that there were fourteen tracks that were operated by appellant. The nearest of these tracks is one hundred and five feet west from the west side line of the church property, and one hundred and fifteen feet west from the west side of the buildings thereon. The other tracks are all to the west; the farthest being between three hundred and four hundred feet distant. The station or depot of appellant is some blocks south, while its yards, which are termed "the north yards," repair and car shops are a half or three-quarters of a mile north of said buildings. The additional tracks before referred to were constructed to accommodate the increased railway traffic and to permit appellant to break up and make up its freight and passenger trains, after arriving, and before departing, in the north yards. In this way many trains, or parts of trains as well as switch engines, pass north and south over the tracks immediately west of the church buildings each day and night. These engines made noises by ringing the bells and sounding the whistles in passing north and south along First West Street, and especially in crossing Third North Street, which, as we have said, runs east and west in front of the church buildings. It is alleged that the noises emanating from the engines as aforesaid disturbed the meetings and exercises that were conducted in said buildings and caused great annoyances to the speakers and singers, and at times interfered with the music and was a great annoyance to those in attendance at the meetings.

To avoid, as far as possible, any misconception with regard to what caused the interferences and annoyances, we shall give the statements of the witnesses in their own language. Mr. Nebeker, who was, perhaps, as familiar with the prevailing conditions as any one, when asked to state what caused the disturbances and annoyances to the speakers and attendants at the various church and other meetings, said it was "the whistling of engines, the puffing of the engines, and the ringing of bells, and the jostling of the cars, switch engines, switching of the cars, and the noises caused by the momentum of the train passing." This witness gives ten specific instances by giving the dates when either the speakers or singers, or some ceremony, was interrupted by the noises referred to by him. The witness, however, says that the disturbances and annoyances occurred at numerous other times; but he was unable to give any specific dates. Mr. Archer, another witness, could not give specific dates, but said that the disturbances and annoyances were frequent and were caused by the "passing of trains and the noise consequent thereto, the whistling and puffing of the engines, and the noise of the cars passing." Mrs. Solomon, another witness, said the disturbances were occasioned by the "trains passing and engines whistling, trains making a rumbling noise and puffing." Mr. Holmes said that the disturbances arose from noises from "the movements of the trains, the noise of the trains, the whistling and the running of the engines and the cars." Mr. Morris said the disturbances were caused "by noises made by the frequent passing of the trains and the shrieking of whistles and the ringing of bells." Mr. Beesley, when asked what caused the disturbances and annoyances said: "It is the passing of railroad trains on the Oregon Short Line tracks and the noises attendant to the screeching of the whistles and the ringing of bells." The other witnesses, Mr. Blake, Mrs. Davis, Miss Davis, Mr. Paul, Mr. Hardy, Miss Thomas, Mr. Thomas, Mr. and Miss Rees, gave the cause of the disturbances in about the same language. Mr. Rees, however, spoke of trains and engines sometimes stopping at or near Third North street and whistling for or when signals were given. These witnesses also said that the interruptions would sometimes occur from four to ten times during a meeting lasting two hours, and they said that the average number of interruptions at a meeting would be four or five and would be from ten to fifteen or twenty seconds duration. Mr. Nebeker gave one instance when smoke from an engine entered the building through the open windows and he says "the smoke was very offensive." This, as far as we are able to discover from the record is the only witness who specially speaks of the smoke. It may have been incidentally mentioned by some others; but, if so, we have failed to discover it. This, for reasons hereafter stated, is, however, not of great importance. The witnesses were, by the trial court, permitted to go into great detail with respect to the ceremonials and other religious exercises that were conducted in the buildings and the interruptions that took place from the causes and in the manner stated, and they all testified that the noises were very disagreeable and annoying. Some of them characterized them as "humiliating" in view of the sacredness of the ceremonies that were conducted from time to time.

Upon the foregoing facts the court, after telling the jury that no recovery could be had for the use of the two tracks first laid, instructed the jury as follows:

"But the defendant is liable for the damages, if any, occasioned by reason of the matters complained of involved in...