
    † McKenney, Petitioner for Certiorari, versus County Commissioners of Penobscot.
    Where, on an appeal from the County Commissioners, a jury is empannelled to view and award damages for land taken by railroad companies, the presiding officer has no authority to give instructions to them in matters of law. But where this .assumption of power is exercised at the request of one of the parties to the proceedings, he cannot complain, even if the instructions are erroneous.
    If the presiding officer gives erroneous instruction to such jury, whether the party suffering thereby without fault, may not obtain relief by certiorari, querc.
    
    Petition for a writ of certiorari.
    
    The petitioner was owner of a small parcel of land, a portion of which was taken by the Penobscot & Kennebec Railroad Company. He was dissatisfied with the damages awarded by the Commissioners, and requested a jury.
    At the view and hearing of the jury, the petitioner claimed damages for a high' embankment made by the railroad, a part of which only rested upon his land; also for damages to his garden by the wash of the earth and gravel from the whole embankment on to his garden. The evidence tended to show that in addition to thp. damage of taking his land, it was greatly increased by the fill in front of his lot and dwelling house.
    The counsel for the petitioner requested the presiding officer t.o instruct the jury, that in estimating and awarding damages, they might take into consideration the injury already caused to his premises by the wash of the earth and gravel from the embankment, and tlte liability to future injury from the same cause; and in addition to the value of the land taken, they might add the injury caused to the residue of his premises by all the fill and embankments of the road in front of his lot, the base of any part of which rested upon his land taken.
    These requests were refused, and the jury were told that they should not allow any damages occasioned by that part of the embankment which stands on land not belonging to petitioner, nor any damages which might probably arise in future by the washing down of dirt and gravel.
    The jury returned a verdict, and the petitioner excepted to the instructions and the refusal, which were allowed by the officer in charge of the proceedings before the jury.
    
      Wakefield, for petitioner,
    contended that his request should have been complied with, and that the mode for computing damages, given to the jury, was erroneous.
    lie also contended that c. 41, of Acts of 1853, § § 9, 14 and 15, have modified the R. S. on that subject. The language in these sections is similar to that used in the R. S. of Mass. c. 39, § 56.
    The proceedings in this case were under the law of 1841, and the decision of Dodge v. County Com. of Essex, 3 Met. 380, was in point.
    
      Certiorari was the proper process to correct the errors of inferior tribunals. Dow v. True Sf al., 19 Maine, 46.
    
      Rowe if Bartlett, contra,
    
    sustained the correctness of the rulings and cited Rogers v. Ken. <§' Port. R. R. Co., 35 Maine, 319.
    The statute did not allow railroad companies to throw, or wash, gravel or dirt on to land not taken by them. For all illegal acts by them the common law afforded redress.
   Rice, J.

From the facts before us we infer that the petitioner was dissatisfied with the amount of damages awarded him, against the Penobscot and Kennebec Railroad Co., for real estate taken for the use of that corporation, and had demanded a jury, under the provisions of the statute.

At the hearing before the jury, the petitioner requested the presiding officer to give certain instructions, as matter of law, as to the rule of estimating damages. The instructions requested were refused, and negatived by those which were given.

It is provided in § 3d of c. 81, R. S., that the damages to be paid by any railroad corporation, for any real estate taken by it, under the provisions of this chapter, when not agreed upon, shall be ascertained and determined by the County Comprissioners, under the same conditions and limitations, as are by law provided, in case of damages by laying out highways.

By § 16 of c. 25, relating to highways, the Commission-x •ers, if they see cause, may appoint some person, specially qualified for the purpose, to preside at the view and hearing of the jury; and by § 17, the person who shall preside at the trial, shall keep order therein, and shall administer an oath to the jurors for the faithful discharge of their duty, and to all the witnesses examined, in the usual form.

The jury are required to view the premises, and also to ' hear and examine all such legal evidence as may be laid before them, with the observations of the parties, or their counsel thereon.

The verdict of the jury, or the report .of the committee, duly returned to the said Commissioners, and by them accepted and duly recorded, shall be conclusive on the parties, by § 19.

There is no provision in the statute authorising the presiding officer to give instructions to the jury as to matter of law, nor for alleging exceptions to his rulings by the parties. The whole proceeding, therefore, both on the part of the presiding officer and the excepting party, was extra-official, on those points.

But the petitioner is not in a position to complain of this assumption of power on the part of the presiding officer, as it appears to have been assumod at his^solicitation. Nor was he aggrieved by the refusal to give the instructions requested', nor by those which were given. He was entitled, under the statute, to a full compensation for all the damages sustained by him for real estate taken by the corporation, of which he was the owner. But the fact, that a portion of his land had been taken by the corporation, did not entitle him to incidental damages occasioned by the fill or embankment resting upon land which belonged to other parties. We do not intend to decide, that in case the instructions of

the presiding officer had been erroneous, and had not been called out by the party complaining, relief would not be granted, in this mode of proceeding. But as this case stands before us, the Writ is denied.  