must go further and prove that she had lost her personal chastity, prior to his alleged seduction of her, or he must prove such facts as, under the law, would raise a violent presumption that she had done so, such facts as, under the law, would authorize a jury to find that she had had unlawful sexual intercourse with a man." In these views we concur. The jury should pronounce the woman not virtuous upon any evidence, direct or circumstantial, which convinces their minds that she had previous illicit sexual intercourse; but without such evidence they should treat her as virtuous for in contemplation of law she is so.

Mental Capacity.-The first requisite to be established in the proof of wills is: Was the testator of sufficient capacity to make a will? On this question of capacity there is nothing so competent in evidence as the statements made by the testator. They are the medium by which the court can come in contact with his mind; to judge of the ability of that mind to transact the business demanded of it. And courts are unanimous in holding that the mental capacity may always be shown by the declarations of the testator; but when admitted for that purpose, they are merely taken as mental acts or conducts. They are not received as evidence of the fact stated, but only to show the manner and capacity of the man who made them.2 A state of mind once proved to exist, it is the common observance and experience that it has existed for some time, and will continue; on this principle subsequent declarations have been admitted to prove the mental fact in dispute, but they must relate to a state of mind in some degree permanent, and be not too remote in time.3 For this reason they would seem to be of equal weight as prior declara

I Waterman v. Whitney, 11 N. Y. 157; Dan v. Brown, 4 Cowen, 483; Comstock v. Hadlyme, 8 Conn. 254; Boylan v. Meeker, 4 Dutcher, 274; Shailer v. Bumstead, 99 Mass. 112; Davis v. Davis, 123 Mass. 590; Robinson v. Hutchinson, 26 Vt. 38; Moritz v. Brough, 16 S. & R. 402; Rambler v. Tryon, 7 S. & R. 94; McTaggart v. Thompson, 14 Pa. St. 149-154; Hayes v. West, 37 Ind. 21; Colvin v. Warford, 20 Md. 390-1; Stevens v. Vancleve, 4 Wash. C. C. 262; Durand v. Ashmore, 2 Rich. 184; Provis v. Rowe, 5 Bing. 435; Marston v. Fox, 8 Ad. & El. 14. 3 Leading cases Eq. 503 note (3 Am. ed.); 1 Redf. Wills, 551-561.

2 Shailer v. Bumstead, 99 Mass. 112; Waterman v. Whitney, 11 N. Y. 157.

3 Shailer v. Bumstead, 99 Mass. 112, Waterman v. Whitney, 11 N. Y. 157.

tions, if no further removed in point of time from the execution of the instrument, and may be quite as influential with the jury.3a It is not necesary, in showing mental capacity, that the statements allude strictly to the disposal of the property of the testator, or in any way relate to the will, as it is not the truth of the statement that is sought, but simply the matter of capacity-sufficient ability on the part of the testator to make his will. Any remark, however remote, indicating his mental status, is admissible.1

Mistake, Fraud, and Undue Influence— Declarations at, or so near the time of the execution of the will as to form a part of the res gestæ, are admissible to prove mistake, fraud, or undue influence. Eight days has been held not too remote to form a part of the res gesta.6 Also where the declarations are evidence of one continuous act down to the time of the execution of the will. They are not admissible to prove the simple external facts of fraud, mistake, or undue influence.$ But they are competent in evidence to show the effect that those external facts had upon

3a. Shailer v. Bumstead, 99 Mass. 112; McTaggart v. Thompson, 14 Pa. St. 159; Boylan v. Meeker, 4 Dutcher, 274; Hayes v. West, 37 Ind. 21.

4 Shailer v. Bumstead, 99 Mass. 112; Waterman v. Whitney, 11 N. Y. 157; Smith v. Fenner, 1 Gall. 170; Stevens v. Vancleve, 4 Wash. C. C. 262; Grant v. Thomas, 4 Conn. 203; Dennison's Appeal, 29 Conn. 399; Dickinson v. Barber, 9 Mass. 255; Thomas v. Thomas, 6 Durn. & E. 671; Doe v. Allen, 12 Ad. & El. 451; 1 Jarman, 408.

5 Smith v. Fenner, 1 Gallison, 170; Runkle v. Gates, 11 Ind. 95; Roberts v. Travick, 13 Ala. 68; Haynes v. Rutter, 24 Pick 242; Rawson v. Haight, 2 Bing. 104; Waterman v. Whitney, 11 N. Y. 157.

6 Smith v. Fenner, 1 Gall. 170.

7 Taylor v. Kelly, 31 Ala. 59; Blakey's Heirs v. Blakey's Exr's., 33 Ala. 611; Comstock v. Hadlym, 8 Conn. 254; Dennison's App., 29 Conn. 399, when made a long time prior; Stevens v. Vancleve, 4 Wash. C. C. 265; Robinson v. Hutchinson, 26 Vt. 38; Shailer v. Bumstead, 99 Mass. 112; Provis v. Rowe, 5 Bing. 435; Redf. Am. Cases on Wills, 265 & 397.

8 Roberts v. Travick, 13 Ala. 68; In re Will of Pemberton, 4 Atl. Rep. (N. J.) 770; Est. of Brooks, 54 Cai. 471; Comstock v. Hadlym, 8 Conn. 254; Kinne v. Kinne, 9 Conn. 102; McTaggart v. Thompson, 14 Pa. St. 159; Moritz v. Brough, 16 S. & R. 403; Rambler v. Tryon, 7 S. & R. 94; Smith v. Fenner, 1 Gall. 170; Jackson v. Kniffen, 2 Johns. Rep. 31; Ryerss v. Wheeler, 22 Wend. 148; Waterman v. Whitney, 11 N. Y. 157; Williams v. Freeman, 83 N. Y. 561; Phillips v. McCombs, 53 N. Y. 494; Boylan v. Meeker, 1 Dutcher, 274; Richardson v. Richardson, 35 Vt. 238; Shailer v. Bumstead, 99 Mass. 112; Runkle v. Gates, 11 Ind. 95; Stevens v. Vancleve, 4 Wash. C. C. 265; Thomas v. Thomas, 6 Durn. & E. 671; Provis v. Rowe, 5 Bing. 435; Pemberton v. Pemberton, 13 Vesey, 101.

9

the mind of the testator. Keeping this distinction in mind, the apparent inconsistency of different decisions passes away. When the precise state of the testator's mind is ascertained, it goes a great way to determine how susceptible it would be to the attempts of fraud, or be influenced by interested parties, and how far the instrument in question is the result of these attempts, or is the offspring of free, voluntary action on the part of the testator. In some few cases the declarations have been admitted to prove external facts of fraud.10 Statements made prior to the execution of the will are competent to prove a previous state of mind." They are admissible to prove the condition of the mind, but not undue influence.12 Also where the issue is fraud and undue influence, declarations made within a reasonable time before and after the execution of a will, are admissible to show the condition of the testator's mind. 18

Intention.--In Shailer v. Bumstead,99 Mass. 112,the court refers to the matter by way of argument, and says: "Intention, purpose, mental peculiarity and condition, are mainly ascertainable through the medium afforded by the power of language." But this broad statement, if limited to cases where ambiguity or equivocation exists, or the description will apply with legal certainty to several subjects, or the words have no clear and definite meaning for these purposes, whether the statements are made prior or subsequent to the execution of the will, they are admissible.14 Some courts have gone further, and hold that they may be admitted to show his declared intention, the meaning he intended to convey by the use of words and phrases, when used idiomatically, or to

9 Shailer v. Bumstead, 99 Mass. 112; Potter v. Baldwin, 133 Mass. 427; Cudney v. Cudney, 68 N. Y. 148.

10 Hester v. Hester, 4 Dev. 228; Howell v. Barden, 3 Dev. 442; Reel v. Reel, 1 Hawks, 248; Jackson v. Kniffen, 2 Johns Rep. 31 (Spencer J. opinion); Roberts v. Travick, 13 Ala. 68; Roberts v. Travick. 17 Ala. 55.

11 Thompson v. Ish (Mo.), 12 S. W. Rep. 510.

12 Middleditch v. Williams (N. Y.), 17 Atl. Rep. 826; Jackson v. Kniffen, 2 Johns. Rep. 31; Waterman v. Whitney, 11 N. Y. 157.

13 Herster v. Herster (Pa.), 16 Atl. Rep. 342, S. C. 122 Pa. St. 239.

14 In the matter of Page, 118 Ill. 576; Bradley v. Reese, 113 Ill. 327; Clark v. Smith, 34 Barb. 140; Trustees v. Peaslees, 15 N. H. 317; Wooton v. Redd's Exr's., 12 Gratt. 196; Morgan v. Burrows, 45 Wis. 211; Sherwood v. Sherwood, 45 Wis. 351; Moritz V. Brough, 16 S. & R. 403; Cheney's Case, 5 Cokes Rep. 68.

explain a bequest, if he had previously intimated that he should make that particular bequest. 15 Declarations, written or oral, made by the testator after the execution of his will, in the event of its loss, are admissible to prove not only that it was not cancelled, but also as secondary evidence to prove its contents. 16 Statements of a testator, proving or tending to prove a fact collateral to the question of intention, where such facts would aid in the interpretation of the testator's words, are admissible; but not if they relate directly to that point.17 They are not admissible to show that the testator meant his will should remain in force against a revocation implied by law.18 But when accompanied by some act of revocation, they are admissible to show intention to revoke. 19 They are not competent to show the intended use and meaning of particular words or phrases, or how he used well settled terms of law.2 20 But they may be admitted to show whether a legacy bequeathed by the testator was intended to redeem a debt or not. 21 Declarations are not admissible by way of intention to explain a will, or that he intended to alter it;22 or that he made no will; or that certain persons only were named in the will.24

Construction and Revocation.-The general rule of the law is, that no words in parol made by the testator will be admitted in evidence to affect, enlarge, control, or in any way modify or revoke a will. The construction must be gathered from the will itself taken as a whole. Statements of the testator, when accompanied by some acts which, if completed would amount to a revocation, are admissible to show that a revocation was in

15 Shailer v. Bumstead, 99 Mass. 112; Harris v. R. I. Hospital Co., 10 R. I. 313; Rutland v. Rutland, 3 P. Wms. 209; Langham v. Sanford, 19 Vesey 649. Contra, Wood v. Hammond (R. I.), 17 Atl. Rep. 324.

16 Dickey v. Malechi, 6 Mo. 177; Hope's Appeal, 48 Mich. 518.

17 Greenleaf Ev. § 291.

18 Marston v. Fox, 8 Ad. & El. 14.

19 Doe v. Perkes, 3 B. & Ald. 489; Doe v. Harris, 6 Ad. & El. 209; Boylan v. Meeker, 4 Dutcher, 274.

20 Aspedus Estate, 2 Wall. 368; Gregory v. Cowgill, 19 Mo. 415; Allen v. Allen, 18 How. U. S. 385; Greenleaf Ev. § 291.

21 2 Story Eq. Juris. § 1119-1123; Redf. Wills pt. 2, § 28.

22 Williams v. Freeman, 83 N. Y. 561; Smith v. Fenner, 1 Gall. 170; Brown v. Saltonstall, 3 Met. 423.

23 Cawthorn v. Haynes, 24 Mo. 236.

24 Bradley v. Bradley, 24 Mo. 311.

tended. 25 Words of revocation penciled on a will by the testator, unless subscribed and attested in the proper manner, will not work a revocation of the instrument. 26 The words of a testator that "he never made the will,” "never signed it," or "did it while he was drunk," and words to like effect, are not admissible to prove a revocation of the will, or to defeat it.27 The declarations of a blind person are admissible to show that he knew the contents of the will.28 It having been shown that a will had been executed, declarations to the effect that a will had been made, and that the property had been given to R, are competent to repel the presumption of a revocation.29 EDWARD H. PARK.

Denver, Colorado.

25 Will of Mary P. Ladd, 60 Wis. 187; Sherwood v. Sherwood, 45 Wis. 357; Cawthorn v. Haynes, 24 Mo. 236; Gregory v. Cowgill, 19 Mo. 415; Bradley v. Bradley. 24 Mo. 311; Clark v. Smith, 34 Barb. 140; Betts v. Jackson, 6 Wend. 173; Jackson v. Kniffen, 2 Johns. 31; Dan v. Brown, 4 Cowen, 483; Jackson v. Betts, 6 Cowen, 377; Waterman v. Whitney, 11 N. Y. 167; Barrett v. Wright, 13 Pick. 45; Farrer v. Ayres, 5 Pick. 404; Osborn v. Bradley, 7 Met. 301; Brown v. Saltonstall, 3 Met. 423; Tucker v. Seaman's Aid Society, 7 Met. 188; Warren v. Gregg, 116 Mass. 304; Avery v. Chapel, 6 Conn. 270; Wells v. Est. of Wells, 37 Vt. 483; Haynes v. West, 37 Ind. 21; Colvin v. Warford Lessee, 20 Md. 357; Bradley v. Reese, 113 Ill. 327; Dan v. Vancleve, 5 N. J. L. 655; Stevens v. Vancleve, 4 Wash. C. C. 262; Smith v. Fenner, 1 Gall. 170; Rutland v. Rutland, 2 P. Wms. 214; Provis v. Rowe, 5 Bing. 435; Granvill v. Beaufort, 2 Vernon, 624; Bibb v. Thomas, 2 W. Blk. 1044. 26 Will of Mary P. Ladd, 60 Wis. 187.

27 Reel v. Reel, 1 Hawks, 248-268-269; Howell v. den, 3 Dev. 442; Patton v. Allison, 7 Humph. 320; wthorn v. Haynes, 24 Mo. 227; Roberts v. Travick, Ala. 55; Gamble v. Gamble, 39 Barber 373; Hand v. offman, 3 Halst. 71; Wooton v. Redd's Exr's., 12 Gratt 196; Kelley v. Kelley, 25 Pa. St. 460.

28 12 Rich. S. C. 604.

29 In re Marsh's Will, 45 Hun. 107.

CONSTITUTIONAL LAW-CONSEQUENTIAL INJURIES-DAMAGES- EVIDENCE.

GAINESVILLE, H. & W. R. CO. V. HALL.

(Supreme Court of Texas, June 24, 1890.)

1. Constitutional Law-Consequential InjuriesDamages Resulting from Operation of Railroad.— Under the Texas constitution, art. 1, § 17, providing that "no person's property shall be taken, damaged, or destroyed for or applied to public use without adequate compensation being made," damages may be recovered for diminution in the value of property caused by noise, smoke, and vibration resulting from the operation of a railroad near the property, although not upon the same nor along a highway.

2. Evidence-Value-Opinion.-The plaintiff, while testifying as a witness on his own behalf, was asked: "To what amount, if any, is your property depreciated in market value by reason of the construction of the defendant's railroad?" Held improper, but as the question was answered in such a way that the result was the same as if the witness had been asked the value of the property before the railroad was built and its value afterwards, the error was harmless.

The

The

GAINES, J.: This action was brought by appellee against the appellant corporation to recover damages to certain real estate alleged to have been caused by the construction of the defendant's railroad, and the operation of its trains. plaintiff's property consists of a lot in the suburbs of the city of Gainsville, upon which he resides with his family, and has a dwelling-house and other improvements appropriate to a place of residence. The dwelling-house stands 26 feet from the south boundary line of the lot. The defendant company took no part of plaintiff's land, but constructed its road parallel to such line at a distance from it of about 37 feet. The damages were claimed by reason of the vibration, noise, smoke, and noxious vapors and cinders incident to the running trains over the road. court charged the jury in effect to find for the plaintiff if his property had been damaged by the construction and operation of defendant's road, provided such damage resulted from the vibration, smoke, noxious vapors, and the noise of passing trains; and that they should not take into consideration any damage plaintiff had suffered in common with the community generally. The defendant asked the court give the following charge, which was refused: "The mere construction and operation of the railroad of defendant upon land adjoining plaintiff's premises, and in the proper and usual manner in which railroads are built and operated, was not an unlawful act, nor could it be denominated a nuisance, and the inconvenience to plaintiff or the owner of the premises from such vibration, noise, and smoke as were incident to the ordinary operation of the railroad, by running from four to six trains per day past plaintiff's premises, (does not give him a cause of action for damages, or depreciation in the value of his premises occasioned thereby. You are therefore instructed to return a verdict for the defendant."

The giving and refusal of these instructions, respectively, present the fundamental question in the case, and involve the construction of that portion of our present constitution which provides that "no person's property shall be taken, damaged, or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person." Article 1, § 17. The precise question made by the facts of this case is one of the first impression in this court. In Railway Co. v. Fuller, 63 Tex. 467 damages were allowed the plaintiff for an injury to his property resulting from the construction and operation of the defendant's railroad along a street in front of his lots. The plaintiff having

an easement in the street peculiarly essential to the full enjoyment of his property, the court held that the appropriation of the street was a taking within the meaning of the constitution. But the court also say: "If, however, there has been no taking of the property of the appellee within the meaning of the constitution, there can be no doubt that it has been damaged, if the evidence offered to support the averments of the petition be true. The word 'damaged' is evidently used in the sense in which the word 'injured' is ordinarily understood. By 'damage' is meant every loss or diminution of what is a man's own, occasioned by the fault of another, whether this results directly to the thing owned or be but an interference with the right which the owner has to the legal and proper use of his own. If by the construction of a railway or other public work an injury peculiar to a given property be inflicted upon it, or its owner be deprived of its legal and proper use, or of any right therein or thereto—that is, if an injury, not suffered by that particular property or right in common with other property or rights in the same community or section, by reason of the general fact that the public work exists, be inflicted-then such property may be said to be damaged." In Railway Co. v. Eddins, 60 Tex. 656, the same question was decided in the same way. The cases cited differ from the case before us in the respect that in each of them the street in front of the property damaged was appropriated, while in this the road was not constructed along or over any public highway adjacent to the plaintiff's lot. We think the language quoted from the opinion in the Fuller Case lays down the true rule. The use of the disjunctive conjunction in the provision of the constitution under consideration indicates clearly that it was not necessary that there should be a taking to entitle the owner of property to compensation for any special damage that might result to it from the construction of a public work. In Railway Co., v. Meadows, 73 Tex. 32, 11 S. W. Rep. 145, this subject came up for consideration, and the court say: "If a railroad company condemned or otherwise acquired for its purposes a right of way over land, and in constructing its road did an act injurious to an adjacent or neighboring proprietor, for which, if done by the original owner, he would have been responsible at common law, the company should be held liable to compensate the proprietor so injured. We do not understand that it was intended to give an action against those constructing public works for acts which if done by persons in pursuit of a private enterprise would not have been actionable." There is high authority for holding that the charter of a railroad company, even in the absence of a statutory or constitutional law allowing compensation for incidental damage, does not exempt it from suits by persons whose property is injuriously affected by its works, although it be properly constructed, and carefully operated, at least in cases where in

pursuance of its charter the works of the corporation could have been so located as to avoid the injury. Baltimore, etc., R. Co. v. Baptist Church 108 U. S. 317, 2 Sup. Ct. Rep. 719. The doctrine as above qualified may be sustainable; but the great weight of authority is to the effect that in the absence of constitutional restrictions the legislative grant legalizes all acts done in strict pursuance of the power conferred, and that persons whose property has been damaged, but not taken, must suffer the loss. If the power does not confer authority to do the act despite the damage, it would be the right of an owner whose property was injuriously affected by the operation of a railroad to enjoin such operation as a nuisance, and thus defeat the grant. We think that the intention of the words damaged or destroyed" in the provision of the constitution under consideration was at all events intended to obviate any question of exemption from liability to the owner for property injuriously affected by a public work, and to provide a remedy for any damage which in such cases the legislature might authorize to be inflicted. It is sufficient for the determination of this case to say that it was certainly intended that the legislature should not authorize a corporation to do an act for a public use which, if done by an individual without legislative sanction, would be actionable, and at the same time exempt it from liability to respond in damages to the owner whose property had been injured. Such was the opinion expressed in the case of Railway Co. v. Meadows, previously cited.

66

We are then brought to the inquiry whether or not the carrying on of any business by a natural person upon his own land, which by reason of the noise, smoke, and vibration caused by the operation of powerful machinery materially diminished the enjoyment of the property of another, and rendered it less desirable as a residence, and depreciated its market value, is a nuisance at common law. The doctrine announced in Burditt v. Swenson, 17 Tex.489, leads inevitably to the conclusion that it is. In that case the court quote Blackstone, who says: "If one does any *** act in itself lawful, which being done in that place necessarily tends to the damage of another's property, it is a nuisance." That a nuisance may be created by smoke, noise, noxious vapors, or other physical disturbance of the enjoyment of property is a proposition in accordance with sound principles, and is well supported by authority. Baltimore, etc., R. Co., v. Baptist Church, supra; Wood, Nuis. § 611, and cases cited; Railroad Co. v. Esterle, 13 Bush. 667; Railroad Co. v. McComb, 60 Me. 290.

There was evidence in this case tending to show that by reason of the noise, smoke, and vibration produced by the operation of the defendant's road the plaintiff's property had been greatly diminished in value. The following is the rule laid down by an eminent English judge as applicable to cases like this: "When by the

construction of any works there is a physical interference with any right, public or private, which the owners or occupiers of property are by law entitled to make use of in connection with such property and which gives an additional inarket value to such property, apart from the uses to which any particular owner or occupier might put it, there is a title to compensation if by reason of such interference the property, as property, is lessened in value." Board v. McCarthy, L. R. 7 H. L. 243. The charge of the court was in accordance with those principles, and was not erroneous. The charge requested was based upon contrary principles, and was properly refused. We deem it proper before leaving this subject to comment briefly upon the case of Railway Co. v. Brand, L. R. 4 H. L. 171, upon which appellant seems mainly to rely for a reversal of the judgment. In its decision a great amount of labor and a great wealth of learning was expended. The plaintiff's claim in that case was precisely like the claim in this. The court of queen's bench held that the plaintiff was not entitled to recover. Brand v. Railway Co., L. R. 1 Q. B. 130. This judgment was reversed in the exchequer chamber (L. R. 2 Q. B. 223), but upon final appeal to the house of lords was sustained. Four of the five judges who were cited to advise the lords were of the opinion that the plaintiff was entitled to recover; and in that opinion one of the lords concurred. Two of the law lords held the contrary opinion, and the house gave judgment accordingly. The important fact, however, is that the decision of the case turned upon the construction of the acts of parliament which allowed compensation to owners where lands were taken or injuriously affected by the construction of public works. The question was whether compensation was intended to be allowed only for damages accruing from the construction of the works, or whether it included also such damages as resulted from the operation of the trains after the works had been constructed. The damages in the case were clearly of the latter character, and each of the judges who gave an opinion against the right of compensation placed it distinctly upon the ground that the acts of parliament commonly called the "Land Clauses Act" and the "Railway Clauses Act" gave compensation only for such damages as resulted from the construction of the railroad, and not from the operation of its trains. The decision of the case was made to depend purely upon a matter of verbal construction. All the judges conceded that the plaintiff's property had been injuriously affected, and that if the language of the statutes had been broad enough to embrace damages resulting from the operation of the works the plaintiff would have been entitled to recover. In the case of Board v. Mc Carthy, above cited, the damages claimed resulted from the construction of the works, and the right of recovery was maintained in the common pleas, in the exchequer chamber, and in the

house of lords. L. R. 7 C. P. 508, L. R. 8 C. P. 191, and L. R. 7 H. L. 243. The question was again considered, and the doctrine of the case last cited affirmed, in Railway Co. v. Walker's Trustees, L R. 7 App. Cas. 259. There is no such difficulty under the provision of our constitution as was presented in the construction of the English statutes. The language, "no person's property shall be taken, damaged, or destroyed for or applied to public use without adequate compensation being made,"is sufficiently comprehensive to include damages resulting from the operation of public works, as well as those which are inflicted by their construction merely. The property in this case was damaged for a public use by the operation of the railroad, and the damage comes as clearly within the provision the constitution as damages which result immediately from the construction of the oad. The property is subjected to a perpetual servitude for the benefit of the public, and the owner is eutitled to his compensation for his damage. The following American cases bear apon the question we have been considering, and support the conclusion we have announced: Bridge Co. v. Geisse, 35 N. J. Law, 558; Chicago v. Taylor, 125 U. S. 161, 8 Sup. Ct. Rep. 820; Rigney v. Chicago, 102 Ill. 64; Reardon v. San Francisco, 66 Cal. 492, 6 Pac. 317; Railroad Co. v. Ayres, 106 Ill. 511; Railroad Co. v. Williamsou, 15 Ark. 429.

During the progress of the trial the following question was propounded to plaintiff on his behalf while being examined as a witness, as well as to his other witnesses: "To what amount, if any, is your property depreciated in market value by reason of the construction and operation of defendant's railroad, taking into consideration the physical disturbances to said property only, if any, such as noise, smoke, noxious vapors, and vibrations, and excluding from your consideration all damages and inconveniences sustained in common with the community at large?" The question was objected to by the defendant on the ground that it called for the opinion of the witness upon a matter involving a mixed question of law and fact. We think that the question was improper, and that the objection should have been sustained. But in so far as the answer of the plaintiff was concerned no harm resulted to the defendant. He did not give a direct response to the question, but answered that the market value of the place was almost totally destroyed; that without a railroad it would be worth at a low estimate $1,000, and its value was decreased from the causes enumerated from one-half to threefourths of that amount. The result was the same as if the witness had been asked the value of the property before the railroad was built and its value afterwards, and the cause of the depreciation in value, if any, and had answered it was worth, before the construction, $4,000, but since the construction was not worth more than $1,000 or $2,500, and the cause of the decrease was the noise,