McKenney v. County Commissioners , 40 Me. 136 ( 1855 )

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.