Shaw, C. J.
The proceedings in this case come before the court by way of appeal from a decision of the court of common pleas, accepting the verdict given by a sheriff’s jury for damages against the respondents for land taken for their railroad. This verdict was given in favor of James Gould, and of the Fitchburg Railroad Company, who were the petitioners for damages against the respondents. Since the cause was brought into this court, the claim of Gould has been settled, and the proceedings, so far as he is concerned, are terminated and discontinued ; and they are now no longer to be brought under consideration, except so far as it may be necessary to consider them, in deciding upon the regularity or legality of the proceedings in relation to the other petitioners, the Fitchburg Railroad Company.
This case nominally comes before this court of appeal from the court of common pleas, upon matters of law apparent upon the record; although it appears, in fact, that the judgment of that court was not passed upon it; but that the hearing before the sheriff’s jury was had by consent, and the verdict made up, after that court had adjourned, under an agreement of the parties to waive all exceptions to the irregularity of the course pursued; an irregularity much more [76]*76considerable than the most of those which have been urged on our attention as sufficient to quash the proceedings.
I. In the first place, we have to remark, that the record of the court of common pleas, a copy of which is in the case, appears to us to be entirely irregular. This is not, perhaps, a matter of surprise, when it is considered that the case was entered in the court of common pleas after the.court had adjourned, and when the clerk was left without form or precedent., and without the aid or direction of the court, to make up the record. This kind of proceeding is comparatively new, — founded on recent statutes, — so that there are no settled and established forms to guide the recording officer.
The court are of opinion, that the record is irregular in setting forth, as part of the record of the court of common pleas, all the anterior proceedings of the county commissioners. For reasons set forth in the case of Walker v. Boston & Maine Railroad, (see ante, page 15,) we think that the proceedings in the court of common pleas begin with the return of the sheriff of his warrant, and of his doings under it as set forth in his return, including his decisions and instructions to the jury, and their verdict.
The mistake, on the part of the clerk, is a natural one; he is the recording officer of both courts, the county commissioners, and the court of common pleas, and has the records of both tribunals officially before him, and in the absence of any particular directions from the court, he might naturally suppose, that it would be convenient to have a full and entire statement of the proceedings of both in his record of the action of the court of common pleas, in affirming or setting aside the verdict.
If this were merely an irregularity in point of form, it would be of little importance. A more exact and better form might be adopted hereafter, and no great inconvenience would follow. But the respondents in this case have assumed, that all the doings of the county commissioners, from the first application of a tenant for years, for the assessment of his [77]*77several damages, to the summoning in of the other parties, the assessment of the damages of those parties, even irregularities as to times of adjournment, and other supposed errors and mistakes of the minutest character, down to the return of the verdict to the court of common pleas, are open on this record ; and if any irregularity can be shown, it is a case for setting aside the entire proceedings.
But if parties were confined to taking their exceptions in proper time and due order before the commissioners and before the court of common pleas, instead of their being opened here, in the first instance, it might appear, that acts which now seem to have been irregular passed by consent, or that exceptions were waived; or the objections may be of such a nature that if they had been taken seasonably, the supposed errors might have been corrected. It is a most important principle, in the administration of justice, that, in order to ensure regularity and give litigant parties every advantage to which they are entitled, objections to irregularities will be received and sustained, if seasonably made ; yet if the party entitled to take such objections passes them by, and proceeds to the further consideration of the case, he shall be deemed thereby to have waived them ; otherwise, a party, .-mowing of defects of form and technical. exceptions not affecting the substantial merits of the case, may lie by and take his chance for a favorable judgment, with a purpose and a power of defeating the judgment, should it be against him.
From this view, it is obvious, that if all the doings of the commissioners, of the sheriff and jury, and of the court of common pleas, were opened before us on this appeal, great injustice might be done, either on the one hand by overlooking manifest errors and encouraging a laxity of practice, or on the other by setting aside judgments upon nice objections in law not affecting their substantial merits. This would be contrary to the,,policy of the law, which, whilst it inculcates a strict and careful practice in all proceedings affecting the rights of parties, will not suffer judgments to be reversed for any defects or imperfections in matter of form, though found [78]*78in the record. Rev. Sts. c. 100, §§ 93, 24. So, as to proceedings before the commissioners, they can only be reversed by a writ of certiorari issued upon a petition, upon which the merits are fully investigated on broad and equitable principles ; and no such writ will be granted, if substantial justice is done, or if the judgment has been carried into execution, in whole or in part, so that quashing it would lead to injurious consequences.
And so, we think, that where it is provided, that when the verdict of a sheriff’s jury is brought before the court of common pleas, they may set the same aside for good cause, it must be for some cause affecting the legality, the justice and the merits of the case. If such.adjudication is founded on matter presented by the warrant, return and verdict, it is matter of law apparent on the record, and will be brought before this court for revision by an appeal; but if it is cause shown by evidence aliunde, including in this designation the record of the commissioners, if adduced for the purpose of showing any fact affecting the merits, it is matter of fact, on which the decision of the court of common pleas is conclusive. If either party has matter of exception to any decision or adjudication of the court of common pleas in matter of law, it must be either especially stated in the decision or adjudication itself, or in a bill of exceptions filed and allowed by that court.
1. The first objection taken to this verdict is, that the pro ceedings upon the petition of James Gould were irregular. We are of opinion, that this objection is not open; that it is not apparent upon any part of this record ; and, for the reasons already given, that it is not before this court. But as the objection was much relied upon, and was urged upon the consideration of the court, it may be proper to consider whether it would avail the respondents, if more distinctly presented on the record.
The proceedings, which we are now revising, commenced with the petition of the respondents, of the 2d of July, 1846, to the commissioners, setting forth the anterior proceedings [79]*79and praying for a jury to revise the appraisement of damages made by the commissioners. In this petition, they set forth, that Gould made application to the commissioners to assess his damages; that they made an assessment; that Gould expressed his dissatisfaction, and prayed for a jury ; that a warrant for a jury was issued accordingly; that a verdict in his favor was returned; and that this verdict was set aside by the court of common pleas, and the fact certified back to the commissioners. It appears, that this verdict was objected to by the respondents, on the ground, amongst other things, that Gould was a tenant for years of the property alleged to be damnified, and that the commonwealth and the Fitchburg Railroad Company, respectively, were the owners of the reversions, in different parts thereof, and ought to have been made parties. The petition then further sets forth, that the commissioners ordered notice to be given to the commonwealth and to the Fitchburg Railroad Company, who appeared ; that Gould’s petition for a jury was set aside or dismissed; that his first petition for an allowance of damages was brought forward ; that the commissioners then estimated damages for Gould, for that part of the estate which he held as tenant for years of the Fitchburg Railroad Company, and also damages for the Fitchburg Railroad Company for the injury to their reversionary interest; the application of Gonld for damages for that part of the estate which he held of the commonwealth being withdrawn. Upon this appraisement of damages. in behalf of Gould and of the Fitchburg Railroad Company, these respondents filed their protest, stating that this last estimate of damages and order for payment thereof were irregular, oppressive and illegal, and that they were aggrieved and dissatisfied with the same, and that for want of a more direct remedy, they applied for a jury, agreeably to the statute for such case made and provided.
Several remarks arise upon this petition. By setting forth these proceedings, knowing of the irregularities, if there were any, and presenting a petition for a jury, in the nature of an appeal to another tribunal, without taking any exception, the [80]*80respondents admitted the regularity of the proceedings and waived any exceptions to them. If they intended to except to the proceedings, in that stage, the remedy was by an application for a certiorari to set them aside.
But were these proceedings irregular ? The ground now insisted upon in argument is, that when the verdict on Gould’s claim alone was set aside, and the case sent back to the commissioners, they had no authority to dismiss Gould’s petition for a jury, and to go back to his application for damages, and summon in the commonwealth and the Fitchburg Railroad Company, to be heard in that stage of the proceedings. If a new order for a jury had been made without summoning in these reversioners, the verdict would have been liable to the same objection as before, on exceptions taken by the respondents, and upon which, as it is stated in argument, and may have -been so in fact, the verdict was set aside. But it is said, that these reversioners could not be summoned in to have their damages estimated by the commissioners; and that they could only go directly to the jury, in the first instance. This is alleged to be an express duty enjoined on the commissioners by statute.
If this is so, it is contrary to the general policy of the statutes, which regard the assessment of damages, in the first instance, as made by the commissioners; and, by which, it is only when one or the other party is dissatisfied with the estimate, that the more cumbrous and expensive remedy in the nature of an appeal to a jury is provided. This point, therefore, requires examination. The statute relating to railroads (Rev. Sts. c. 39, § 56) provides, that railroad corporations shall be liable to pay all damages occasioned by the laying, out, &c., of their roads, and that such damages shall be estimated by the commissioners, in the manner provided in the case of laying out highways. The next section (§57) provides, that either party dissatisfied with the estimate of the commissioners may apply for a jury, at that or the next regular meeting, and the like proceedings shall be had thereon, as are provided in the case of laying out highways. The fifty. [81]*81eighth section limits the time for making application to the commissioners, with some exceptions, to three years. These are the leading provisions in the railroad act, in regard to the liability for damages and their assessment and recovery; the mode of proceeding is referred entirely to the statute relating to highways. Now when it is said in the statute that “like proceedings shall be had,” it must mean similar proceedings where the cases are alike.
The respondents, recurring to the highway act, Rev. Sts. c. 24, rely upon §§ 48, 49, 50, 51, which provide, that where several parties have distinct estates and interests in the land taken, as where there is a tenant for life or years, with remainders and reversions, the damages shall be appraised as of the entire estate; and also that when one of such parties shall apply for a jury, all the others may become parties, and for that purpose may be summoned before the commissioners. These sections then direct that the whole matter shall be determined by one verdict, appraising the whole damages, and apportioning them among the several parties according to their respective estates and interests, and that the verdict shall be binding and conclusive upon all who are parties or have notice; making no provision for a previous appraisement of damages by the commissioners, in behalf of those who are thus summoned in.
But, before applying these provisions, relating to damages for land taken for highways, literally and strictly to the case of persons entitled to damages under the railroad act, it is necessary to consider the difference between the two classes of cases, and especially the difference in the manner of commencing proceedings for the recovery of damages.
By the highway act, Rev. Sts. c. 24, § 11, it is made the duty of the county commissioners, in the first instance, and without any application therefor, in laying out a highway, if any person has sustained damage, to estimate such damage and return it with their location. The twelfth section directs, that such damages shall be estimated severally, and apportioned among the person's having different interests, and re [82]*82quires the commissioners to make return of such apportionment. The thirteenth section provides for a jury, in beha'f of any person aggrieved by the doings of the commissioners, in the estimation of his damages. The provisions before cited provide what shall be done in regard to several parties having different interests when it comes before the jury.
Here, then, it is to be considered, that before proceeding to lay out and locate a highway, the commissioners are to give notice to all persons interested of the time and place, amongst other things, to make their claims for damages, to be returned with the location. This extends to all persons whose lands are traversed by the highway or otherwise damnified, whether general owners, or having particular estates and limited interests therein. It follows, therefore, that every person’s claim for damages has been passed upon by the commissioners, and allowed or disallowed, on the return ’ of the location ; and when a jury is prayed for, no further estimate by the commissioners remains to be made for any party; and when application for a jury is made by a tenant, nothing more remains to be done, than to summon in the other parties to go before the jury.
But the course of proceeding is quite different in the case of railroads. The location is not made by the county commissioners, but by the corporation; and, therefore, no return of damages is made with the location. The statute (Rev. Sts. c. 39, § 55) contemplates, that the railroad corporation may purchase any land necessary for the making of their road ; and it is only in the event of their not being able to obtain it by agreement with the owner, that the damages are to be estimated and determined by the county commissioners.
Then as to the mode of obtaining an estimate of damages; under the highway act, no application of the owner to the commissioners in the first instance is necessary. By the railroad act, (Rev. Sts. c. 39, § 56,) application must be made to the commissioners by the corporation or by the owner, and by § 58, such application may be made at any time within three years from the time of taking the land. So, in the [83]*83application for a jury; in the case of a highway, it must be made at the meeting at which the location is' returned, or the next succeeding meeting. But by the railroad act, (§ 57,) it must be made at the meeting at which the estimate of damages by the commissioners is completed and returned, or at the next regular meeting. So it follows, that whilst an application for a jury, in the case of highways, must necessarily be made within a few months after the location of the highway, it may be postponed for several years, in the case of railroads ; though, in both cases, it is made promptly after the estimate of damages is made by the commissioners. It is in the nature of an appeal from their decision.
We have already suggested, that the whole scope of these acts implies and assumes, that the action of the jury is regarded as a revision of the estimate of damages by the commissioners. The Rev. Sts. c. 39, § 62, provide, that the corporation may tender the amount awarded by the commissioners, and if the owner afterwards proceeds to call a jury, it shall be at the peril of costs.
It therefore appears to us, that the difference between the two classes of cases warrants and requires some difference of proceeding, under the direction that “like proceedings” shall be had; and, therefore, that when parties, whose damages have not been estimated, are summoned in, their damages are first to be estimated by the commissioners, before the case is sent to a jury. This course seems obvious, and to arise by necessary implication, when the existence of sue! distinct interests is made known to the commissioners, before any warrant for a jury issues.
But it is contended, that when a warrant had once isr.ued, on the application of Gould, although the verdict was set aside, and the case sent back to the commissioners, they were not at liberty to discharge the order for a jury made on his application, and to go back to his original application to assess damages. If it was within their jurisdiction first to estimate the damages for the Fitchburg Railroad Company, as reversioners, they must discharge the prior estimate made by them, [84]*84in order to comply with the positive injunction of law, to appraise the estate as a whole and apportion the damages. Perhaps, by this mode, Gould’s proportion might have varied from the original estimate, as made independently. If they had authority to do the thing, as no mode of proceeding is directed, we do not see why the form adopted was not a suitable and convenient one, to discharge the former order for a jury on his separate claim, and proceed to consider the claims of the parties as on the original petition.
But without deciding this point absolutely, we are of opinion, that the respondents could not object to it. If any body could object to it, it was Gould. The provision, that where there are leases and other distinct rights and interests in an estate, the whole shall be appraised and apportioned, is a rule manifestly prescribed for the security and benefit of those who are liable to pay damages. Without it, they would be deprived of the benefit of the mathematical rule, that all the parts are equal to the whole. Where there are several terms, longer or shorter, partial and derivative interests, if each were severally appraised by different juries, there would be danger that the aggregate of the parts .would exceed the whole, to the injury of the respondents. Whether, therefore, Gould could or could not have objected to the course adopted by the commissioners, the respondents could make no such objection; and, as against them, there was no error in this respect, which they can set up against the claim of the Fitch-burg Railroad Company who were thus summoned in.
2.. It is objected, that the board of county commissioners was not duly and legally constituted. For reasons given in the case of Walker against these respondents, (see page 19 ) this exception is not now open. If the board was not regularly constituted, the respondents, by proceeding,'waived the objection. Ipswich v. Essex, 10 Pick. 519.
3. An objection was taken, that the jurors were not rightly summoned, there being five from Charlestown. This was an exception to the jurors from Charlestown ; had it been made at the time, others might have been summoned.
[85]*854. Another objection to the jury was, that the sheriff summoned fourteen jurors, whereas the law requires him to summon a jury of twelve men. The provision of the statute (Rev. Sts. c. 24, & 18) seems to us no absolute restriction to his summoning only twelve jurors, but a direction to summon a jury to consist of twelve. The term jury does not necessarily imply twelve men. There are statutes, as in the case of coroners’ inquests, and some others, which provide for a jury to consist of less than twelve persons. Some regard is to be had to the usages of courts, and we believe it is common in all courts, in order to ensure the attendance of twelve qualified jurors, to summon a few over the number, to provide for sickness, absence and other contingencies. But if it was an irregularity, it was waived by proceeding.
5. A further objection was, that this cause did not go to the same jury with a previous one against the same respondents, because one of the jurors, who sat in the former, being interested in this, was set aside and another substituted. It would be difficult to say, that this was not the same jury, but the objection is not apparent on the record, and not open on this appeal.
II. Several questions were raised and discussed, respecting the correctness of the directions and instructions of the sheriff to the jury. All those which relate to Gould’s claim are passed over and are not now in question ; the proceedings of the several claimants being in their nature several. The Fitchburg Railroad Company were rightly before the court, after they were summoned in by the commissioners, and brought before the jury by the petition of the respondents.
1. The first direction, which was excepted to, turned upon the question, what was the true course and place of the commissioners’ line of the harbor of Boston; to which, under certain limitations, the petitioners, as the assignees of the Charlestown Wharf Company, were authorized to extend their line. The statute of 1840, c. 35, establishing the line of the harbor of Boston, fixes it at the place in question at a point fifteen feet from the south corner of Gould’s wharf, and three [86]*86hundred and twelve feet from the wall of the Charlestown Wharf Company. In the bill of exceptions certified by the sheriff, this exception is thus stated: “ It having been proved, that the south-east corner of Gould’s wharf was three hundred and two feet from the old sea wall, mentioned in the act of 1840, c. 35, § 4, and that the commissioners’ line, as laid down on the plan and claimed by the petitioners, was fifteen feet in advance of said corner; the sheriff was thereupon requested by the respondents to rule, that there is such an ambiguity in respect to that part of the commissioners’ line, that it cannot now be determined where the line is; or, sec ondly, that the true line is five feet nearer the shore.” The sheriff refused so to rule, and the respondents excepted.
The court are of opinion, that this decision was right. The question was purely a question of fact upon the evidence. One point mentioned in the statute was the south corner of Gould’s wharf, and the line was fixed at fifteen feet distant. The other point was the sea wall, three hundred and twelve feet distant. The former was the first named and the nearest ; the latter, the monument, was the most permanent. But the statute does not fix the point in the sea wall, from which the three hundred and twelve feet were to be measured, and the distance might be so measured as to satisfy both descriptions. But if that could not be done, one must yield. And further, if there was any ambiguity, it was a latent ambiguity, which arose from applying the terms of the statute to the local objects, and was therefore a question' of fact for the jury.
2. The second exception turns upon the question, What were the rights of the petitioners, as the successors and assignees of the Charlestown Wharf Company, to extend their wharves beyond the line of low water mark to the commissioners’ line, by force of the statute of 1841, c. 35? This act authorized the proprietors both above and below Charles River bridge, and between Warren bridge and Prison Point bridge, to extend their wharves into the channel to the commissioners’ line, with the privilege to lay vessels at the sides [87]*87and ends of their respective wharves, to be built on piles so far as they should be extended into the channel. There was evidence tending to show that the sea wall of the petitioners, between Warren bridge and Prison Point bridge, was built at different distances below high water mark, arid above low water mark, filled up behind or towards the shore to high water mark, .and used for landing lumber and other things, and that there were pier or pile wharves about eighty feet wide projecting therefrom towards the channel.
The sheriff was requested to instruct the jury that the act of 1841, c. 35, did not authorize the sea wall to be advanced by a pier wharf to the commissioners’ line, but only the projecting wharves ; and secondly, that as a license it was revocable by the legislature, before it was executed at the part taken by the respondents. These instructions the sheriff declined to give. Both parties also requested instructions as to the right of the petitioners to extend out their whole wharf along the entire extent of the sea wall, upon which the sheriff gave the instructions requested by the petitioner, and declined giving those requested by the respondents. To this the latter excepted. The court are of opinion that the instructions given were right ,• that the statute of 1841 operated as a grant to the Charlestown Wharf Company, and not as a mere revocable license, and was not affected by the act incorporating the respondents.
On the other point, the court are of opinion, that the sea wall built below high water mark, and filled up back to high water mark, and used to land lumber and other things upon, being an artificial structure adapted to such a purpose, was a wharf, and that the sheriff rightly instructed the jury, that under the act in question, the grantees, for themselves and their successors, were authorized to extend such wharf, along their whole front, to the commissioners’ harbor line. It is to be considered, that without such grant, the owners would have had a right to fill up and cover their entire front to low water mark.
But it is said, that the.statute distinguishes between the sea [88]*88wall and the wharves, and, therefore, that the same thing could not be meant by both these terms. The statute applies to a long line from the navy yard to the state prison, some part of which had no sea wall or wharf in front of it. And further, it is said, that- upon this construction, it would have been superfluous to authorize owners to lay vessels at the sides and ends of their wharves. But there was a good reason why this privilege should be granted, because, although the proprietors would have a right to carry out their whole front to the line, they might not do so, and probably would not, because it would be more useful to leave slips for the access of vessels, and to afford berths for vessels. Should they adopt that mode of improvement, and extend such wharves to the harbor line, and into the channel, with slips between them, the waters at the ends and sides of such wharf, so far as they projected beyond low water mark, would be public water, and such a grant of a privilege to use them and to receive wharf-age and dockage therefor might be thought necessary.
3. The next instruction asked for was relative to a claim made by the petitioners, for damages occasioned by the construction of the draw and piers, erected in the channel by the respondents, so near the petitioners’ land, as to cause increased expense. There seems to be some contradiction in the instructions said to be given, and perhaps there may be some mistake in the statement. But we are satisfied, that the instructions authorized the jury to give damages for loss occasioned to the petitioners by the erection of a draw and piers, made by the respondents according to an act of the legislature, in the channel of Charles River, by which the course of the currents was changed, and additional sea wall- and piling made necessary to secure the petitioners’ land. This direction, we think, was incorrect. It is incident to the power of the legislature to regulate a navigable stream, so as best to promote the public convenience; and, if in doing so, some damage is done to riparian proprietors, and some increased expense thrown upon them, it is damnum absque injuria, But as this item was separately estimated in the verdict at the [89]*89sum of five hundred dollars, it can be deducted, without the necessity of setting aside the verdict.
4. The respondents requested the sheriff to instruct the jury, that the letter from Jacob Forster, president of the Fitch-burg Railroad Company, to Thomas West, president of the Boston & Maine Railroad, dated August 10th, 1844, with the evidence of the subsequent building of the road and wall, proved such an agreement or contract, relating to the subject matter, as to bar the present claim; which instruction the sheriff refused to give.
This was, in our opinion, correct. The evidence shows no elements of a contract, but rather' the offer of a contract declined. There is no price stipulated, no terms, no consideration. As a license, it added nothing to that which the company had before; and it probably referred to the equitable terms of settlement provided for by law, if not otherwise adjusted by negotiation.
5. The petitioners requested the sheriff to instruct the jury, that if they should see fit, they could find the items, or separate claims for damages separately. The sheriff did accordingly instruct them, that finding the entire damages and apportioning them as between landlord and tenant, they would then be at liberty, if they should see fit, to state in their verdict the items of damages, with the amounts, as they should find, against each. To these instructions the respondents excepted. We can perceive no tenable ground for this exception. As a general rule, a jury is not bound to give a special verdict ; but where there is an assessment of damages, founded upon distinct and separate grounds, it is a very convenient practice, and may often save a further trial, and subserve the purposes of justice, to state what items they allow and what they reject; and we can see no objection to it.
6. The last exception is to the form of the verdict, which is said to be erroneous, in giving the bulk of the damages for the land over which the petitioners had a right to build a pier wharf. Probably there is an inaccuracy in the terms of the verdict; perhaps some words were left out in copying, oi [90]*90otherwise. But it was merely an inaccuracy in words ; a few words added would malee it read, land “ owned as well as ” “land over which,” &c. We see nothing to warrant the conclusion, that it did not include land owned by the petitioners and taken by the respondents. But take the language literally ; “is for the land over which the company have a right to build a pier wharf.” This description embraces land above low water mark, owned by the company, over which they had a right to build a pier wharf, or any other structure, as well as land below low water mark, over which they were authorized to build a pier wharf by the special act of the legislature. This objection therefore affords no ground for setting aside the verdict.
The petitioners having moved for interest on the verdict, and for costs, the opinion of the court was subsequently stated.
Shaw, C. J.
1. Interest is to be computed on the verdict, after deducting $500 therefrom, according to the opinion heretofore given, to be computed from the time of the appeal taken in the court of common pleas to the time of making up the judgment in this court.
2. The case having been brought before a jury by the petition of the respondents, and the estimate of damages made by the commissioners having been reduced by the verdict of the jury, no costs of the warrant and jury are to be taxed against either party; not in favor of the petitioners against the respondents, because they have reduced the damages; nor in favor of the respondents against the petitioners, because they did not tender the amount estimated by the commissioners, but, on the contrary, claimed a jury to reduce it. The taxable costs of the appeal are to be taxed for the petitioners here, and included in the certificate.
• 3. A certificate is to be issued to the commissioners, as in the preceding case.
Wilde, J., and Fletcher, J., did not sit in this cause.