The opinion of the court was delivered on the 26th of March, 1849.
Shaw, C. J.
This case comes before the court, by an appeal on the part of the petitioner from an adjudication of the court of common pleas, by which that court set aside and rejected the verdict of a sheriff’s jury, awarding damages to the petitioner, for lands alleged to belong to her and to have been taken by the respondents in laying out their railroad. The petitioner now asks that this verdict, returned by the jury in her favor, may be accepted, and that judgment may be rendered thereon. To this the respondents object, and insist on various grounds of exception, both to the petitioner’s title, the instructions of the sheriff, and to the correctness and regularity of the proceedings. The record before us does not show upon what grounds the court of common pleas proceeded in disallowing this verdict; but if any of the exceptions and grounds of defence, taken by the respondents, are well founded, and it thus appears that the petitioner cannot recover, then the judgment is to be affirmed, and all further proceedings in the case terminated. We shall therefore proceed to consider these exceptions and grounds of defence, as they appear upon the record, and have been brought to our attention in the argument.
The first and material question, which lies at the foundation of this inquiry, is this; what questions are open, upon an appeal like the present, from an adjudication of the court of common pleas, ordering the acceptance or rejection of the verdict of a sheriff’s jury, returned into that court, pursuant [11]*11to statute The whole course and form of proceeding are comparatively new, and no very definite practice in relation thereto has yet been established.
It has been decided, that an appeal lies, in a case like the present, by force of the Rev. Sts. c. 82, § 6, giving such appeal, in any civil suit or proceeding whatever, from a judgment or decision founded on matter of law apparent on the record. Lanesborough v. Berkshire, 22 Pick. 278. But it is considered, that such an appeal must be strictly confined to the purpose for which it is allowed, namely, in order to afford a cheap, simple and prompt mode of reexamining a judgment in matter of law, which would be examinable and liable to be reversed or affirmed on writ of error. Ward v. American Bank, 7 Met. 486.
This rule is not confined to a writ of error in the strict technical sense in which that term is used; because such a writ of error lies only in cases of judgments rendered according to the course of the common law. But the appeal being given in matters of law, apparent on the face of the record, .n every civil suit and proceeding, it must extend to judicial proceedings not according to the course of the common law, and where certiorari would be the proper mode of bringing the proceeding before this court, for reexamination, in matter of law. Such was the case of Lanesborough v. Berkshire, first above cited.
But as such an appeal is, in effect, a summary proceeding, given as a substitute for a writ of error, it will be construed with the same liberality, to reach the merits and justice of the case, as that with which a writ of error is directed by the statute to be construed. The Rev. Sts. c. 100, § 23, provide, that after judgment any defect or imperfection may he rectified or amended, either by the court in which it is rendered, or by the court to which it shall be removed, if substantial justif e requires it. And the next section provides, that no judgment shall be reversed for any defect or imperfection in matter of form, which might by law have been amended.
The obvious purpose of these provisions is, to prevent the [12]*12reversal of judgments upon technical exceptions and matters of form, when such reversal is not necessary, to reach the substantial justice of the case. The case of a certiorari, if not within the terms, is certainly within the spirit and equity of the statute, and clearly within the reason of the rule. And so it has been settled in a series of cases, that a certiorari, which is an application addressed to the sound discretion of the court, will not be granted, when substantial justice has been done; Rutland v. Worcester, 20 Pick. 71; or where a road has been located and made, and much expense incurred; Ex parte Miller, 4 Mass. 565; Whateley v. Franklin, 1 Met. 336; or on account of the shortness of notice to a town, where the town has appeared and made no objection to the ..ortness of the notice; Comm’th v. Westborough, 3 Mass. 406 ; or where it does- not appear on the records of the proceedings, that a party has had notice, if it appear aliunde that the parties substantively interested appeared, or much time has elapsed. Hancock v. Boston, 1 Met. 122. And the court are of opinion, that upon an appeal, by which a case is brought before this court, to be reconsidered upon questions of law, and where the court are to reexamine it in a summary way, as would be done more formally on certiorari, the court are to consider the case in the same manner as if thus formally brought before them.
But in getting an adjudication reversed and annulled by certiorari, the party moving has two processes to go through. As the issuing of a writ of certiorari is not a matter of right, the party must first apply to the court by petition, and set forth the grounds and merits of his case ; upon which, notice to show cause is given to the adverse party, and on the hearing of the petition, the question is discussed upon its merits, and the petition is granted or denied according to the substantial justice of the case. If denied, the adjudication will stand unreversed, although there may be grounds of legal exception. It is granted only when, upon grounds of justice and law, the judgment is irregular and erroneous, and in the opinion of the court ought to be annulled. Now when the [13]*13popular and more summary process of appeal is substituted for the more formal and cumbrous one of certiorari, this court as the revising tribunal, are called upon to exercise both branches of this jurisdiction, as well that which is exercised upon the petition for a certiorari, as that which is exercised in reversing or affirming the judgment upon the return of that writ. With these preliminary views of the nature and scope of the inquiry before us, we will proceed to examine the alleged grounds of error apparent on this record.
1. The first exception is, that the respondents had no notice of the pendency of the petitioner’s application for a jury, previously to the issuing of a warrant therefor by the commissioners.
There is no doubt, that in point of law, the corporation, against whom a warrant for a jury is prayed for, is entitled to notice from the county commissioners, in order that they may have an opportunity to adjust the damages by negotiation, or to agree upon a committee to assess them. Central Turnpike, Petitioners, 7 Pick. 13. That case was decided on a petition for a certiorari. But the question still recurs, how must the objection be made to appear, and how shall the party excepting take advantage of it ? That he may petition for a certiorari to remove the adjudication, under which the warrant issued, as soon as he has notice of the fact, is one remedy; but it is insisted, that it is not an adequate one, and that it has not been allowed in this stage. Hinckley, Petitioner, 15 Pick. 447. In that case, the objection was sustained on an appeal, affirming an adjudication of the court of common pleas to the same eifect. But in that case, it is stated, that the verdict was rejected by the court of common pleas, on the ground, that no notice was given by the commissioners, without stating how the fact appeared ; it might have been by an agreed statement, or in the judgment itself, and, further, no exception was taken to its consideration.
In the more recent case of Brown v. Lowell, 8 Met. 172, before this court, on appeal from the court of common pleas, affirming their judgment setting aside the verdict of a sheriffs [14]*14jury, although there was another reason for setting aside the verdict, yet it was also held to be erroneous, on the ground, that the commissioners had given no notice of the pendency of a petition for a jury. No objection, however, was taken, that the point was not open upon the appeal; but, on the contrary, both parties desired the opinion of the court upon it.
But without questioning the authority of these cases, and without denying that the objection may have been rightly taken before the court of common pleas, and in due form brought before this court, we think it nowhere appears on this record, that the respondents had not due notice of the pendency of the petition before the warrant issued.
In order to understand what questions, this proceeding before the court of common pleas, and by appeal before this, presents, it becomes necessary to examine somewhat in detail, the nature of these proceedings, and the form and matter of the record to be examined. We have already said, that this course of proceeding is anomalous, and that it differs from the ancient course of proceeding, when these matters were under the jurisdiction of the court of sessions, possessing all the attributes, and proceeding with all the forms, of a strictly judicial tribunal.
But the functions of the county commissioners are rather administrative than judicial, and up to a certain point, they act rather as public agents and arbitrators, than as judges Still, the legislature probably thought it necessary, in compliance with the injunctions of the constitution, to give to those, whose property was taken for public use, the privilege of a trial by jury.
Up to this point, the subject is left under the administration of the commissioners; but, after the issuing of a warrant, and the matter being thus put in train for the trial by jury, it seemed necessary that provision should be made for the examination and allowance or disallowance of the verdict ,• and as that might involve great questions of public and private right, it was probably considered more conformable to the analogies of the law, and the general principles on [15]*15which justice is administered, to commit this function to a strictly judicial tribunal. It is therefore provided, that the verdict may be returned to the court of common pleas, who shall receive the same, and adjudicate thereon, and may set the same aside, for good cause. Rev. Sts. c. 24, § 34, reenacting, in this respect, St. 1827, c. 77, § 12.
From this view, it is manifest, that the time and mode in which the matter is first brought under the cognizance of the court of common pleas, is the time when the verdict is first returned there by the sheriff. Their record will then, after the usual caption, set forth the warrant, the return of the sheriff, and the verdict of the jury. And these, as far as we can perceive, are all that is before them as matter of record; all the anterior proceedings having been conducted before the. county commissioners.
We are not aware, that there is any particular form, in which a warrant from the commissioners is framed, and it is probable, that different commissioners and clerks adopt different forms. Whatever may be the form, we think it should set forth, with sufficient certainty, the subject matter into which the jury, under the direction of the presiding officer, are to inquire. It should describe the land over which the road passes, the petitioner’s title to, and interest in it, the location of the road, and the incidental damages, if any, which the petitioner has sustained, in addition to the value of the land taken. This, we think, may be done, by reciting the substance of the petition in the warrant, or by annexing an authenticated copy of it, and referring to such copy in the warrant, by which it is effectually incorporated into, and made part of, the warrant. But such an annexation of a copy of the petition, with the orders of the commissioners, does not necessarily bring before the court of common pleas the regularity of the anterior proceedings, as a matter of record; they are inserted alio intuitu, for the purpose of informing the sheriff and jury of the matter to be tried.
Then the question recurs, Have the court of common pleas no power to decide, in acting on the question of the accept[16]*16anee of the verdict, that the warrant itself issued improvidently, or without legal authority ? This certainly does not follow from the views we have taken. The powers given to the court of common pleas, on the return of the verdict, are very large and indefinite ; they are to adjudicate thereon, and may set the same aside for good cause. There is nothing to specify the nature of these causes. The empanelling of the jury by the sheriff, and all his other proceedings, will appear by his return, together with his rulings and decisions, which the law requires him to return ; and all these are of course before the court for their consideration. There is no doubt, also, that whatever affects the purity, honesty and impartiality of the verdict, such as tampering with jurors, or other misconduct of a party, any irregularity or misconduct of juries, showing a good cause why the verdict should not be accepted, may be brought before the court by evidence aliunde, because such a cause vitiates the verdict, proves that it is not conformable to law and justice, and ought not to stand as the basis of a judgment.
Whether it would be competent for the court to set aside the verdict, as being without or against evidence, or against the weight of evidence, we believe, has not been decided, and we give no opinion. The language seems broad enough to include any and all causes, for which a court of law, in the exercise of its ordinary jurisdiction, may set aside the verdict of a jury, and order a new trial. Whether and to what extent, the generality of the language should be restrained by the subject matter, and the implications arising from the objects and purposes of the statute, are questions to be considered as they arise.
But the power of the court of common pleas over such a verdict is much larger than the power of this court on an appeal. The court of common pleas may set aside the verdict for any good cause ; we are merely to reexamine their judgment, in order to ascertain if there is any error therein apparent on the record. If, then, a party desires to bring his tase before this court, upon questions of law, not appearing [17]*17in the warrant, the verdict, the return of the officer, including his directions and instructions to the jury, and the adjudication of the court of common pleas, it can only be done by a bill of exceptions filed and allowed in that court. We see not why that court may not specify in the adjudication the grounds, on which they accept or disallow the verdict; and if such adjudication involve a question of law, it woulc then be apparent on the record. Otherwise, as already stated it may be done by bill of exceptions. The language of the statute is very broad : “ Any party, aggrieved by any opinion, direction or judgment of the court of common pleas, in matter of law, in any civil action, suit or proceeding whatever, whether it be according to the course of the common law or otherwise, may allege exceptions,” &c. Rev. Sts. c. 82, § 12. Exceptions thus allowed and filed would become a part of the record, and come with it to this court. The questions presented in the case are then apparent on the record, and examinable by this court on appeal.
Now, therefore, suppose that the cases cited, Hinckley, Petitioner, 15 Pick. 447, and Brown v. Lowell, 8 Met. 172, do fully warrant the proposition for which they were cited, to wit, that in adjudicating upon the verdict of a sheriff’s jury, it is a good cause for setting it aside, that the respondents had no notice from the commissioners, before the warrant issued, that principle cannot affect the present case. If the court of common pleas were called upon to act on this ground, it would not be from any thing appearing in the warrant or return, but from facts brought to their notice by evidence aliunde. The fact, that no averment appears on the record, that notice was given, could be of no avail, because there is no occasion why it should appear. Even if the record of the commissioners were produced, as such evidence of the fact, it would not be conclusive ; because it might be shown, in answer to such objection, that in point of fact, the respondents were summoned, or consented to take notice, without summons, or in fact appeared before the commissioners. All this is matter of fact before the court of common pleas, open [18]*18to proof, by the commissioners’ records, by testimony, and other competent evidence ; and the conclusions of the court of common pleas, upon all questions of fact, are decisive and final. Were it otherwise, an appeal to this court would bring before us all questions of fact, as well as of law, contrary to the plain intent of the statute. If there was no formal notice ordered or given, and no waiver, appearance in fact without notice, or other good excuse, as in the case of Hancock v. Boston, it was a pure question of fact. If, upon any facts admitted or proved, the court of common pleas decided, that decision could be corrected here only when apparent on the record, and could only appear on the record, by a bill of exceptions taken there. We are therefore of opinion, that this first objection to the petitioner’s verdict cannot prevail.
2. The next objection is, that the application for a jury was presented to the commissioners at their term held in April, 1845, and the warrant was issued at March term, 1846, whereas the respondents maintain, that the petition must be received and acted upon at the same or next succeeding meeting of the commissioners, and not afterwards. Rev. Sts. c. 24, § 14. The answer already given applies to this, that it does not appear on the record.
But the objection seems to call for some further remark ; and it is obvious to us, that this provision limits the time, within which the application must be made, and not that, within which it must be decided upon. It would require express language to warrant a contrary conclusion, because much time may often necessarily elapse, for giving notices, hearing proofs, and for deliberation. But, further, the clause in question, “ may be received, and acted upon,” is found in the chapter relating to highways (Rev. Sts. c. 24,) and is not found in the chapter relating to railroads (Rev. Sts. c. 39). The latter merely provides, that either party dissatisfied, &c., may apply for a jury, at the same, or the next regular meeting, (extended to one year by the statute of 1847, r. 181,) omitting the words, “may be received and acted upon,” upon which alone this objection arises, but proceeds to direct that [19]*19the like proceedings shall be had thereon, as in the case of highways.
But as the preliminary proceedings, in regard to laying out, assessing damages, and making returns, are different in the two cases, the rules directing the mode of proceeding in the one can only be followed in the other, so far as the same are applicable. In the case of highways, the commissioners assess damages, as of course, to all proprietors, whose lands are taken, and return the assessment, with their location, and thus fix the time, within which application may be made for a jury. In the case of railroads, damages are assessed only on application to the commissioners, by one of the parties, within three years after the land is taken.
3. It is objected, that wherever there are opposing parties, no business can be finally determined by the commissioners, except by consent, unless there shall be three disinterested commissioners present. Rev. Sts. c. 14, § 27. It is a sufficient answer to this objection, that it does not appear, that there were not three disinterested commissioners present, or that the business was not done by consent. The presump tion, comformably to the maxim omnia rite acta, is, that the proceedings were correct and conformable to law, unless the contrary is shown. Errors must be apparent, and not merely suggested.
4. The next objection, arising from the facts apparent upon the record, that is, from the return of the sheriff, is, that the law was not complied with, because some of the jurors were drawn from Charlestown, a town in which the land to be appraised lies. This would be a good exception, if seasonably taken before the sheriff and not waived. It has been held, under this provision, that the town in which the land lies is not a town next adjoining, within the provision of the statute. Wyman v. Lexington & W. Camb. R. Corp. 13 Met. 316.
But this was an exception to the Charlestown jurors only, the other jurors were rightly drawn and summoned, and the exception should have been made at the time ; and the respondents, by proceeding without exception, and taking theii [20]*20chance for a favorable verdict, are precluded from afterwards taking the exception. The fact must have been known to the respondents. It has been repeatedly held, that if there be an exception to a juror, and the party, knowing of such exception, proceeds to trial, it is inconsistent with good faith and fair dealing, for him afterwards to insist on such an objection. If he has any real objections to any juror, he must take his exceptions in due time and right order. Davis v. Allen, 11 Pick. 466; Simonds v. Parker, 1 Met. 508. And the same rule applies to referees and county commissioners. Fox v. Hazleton, 10 Pick. 275 ; Ipswich v. Essex, 10 Pick. 519. In the case cited of Wyman v. Lexington & W. Camb. Railroad Corp., the exception was taken before the sheriff, and insisted on, seasonably.
If the exception had been made at the time, it would have been competent for the sheriff to set aside the jurors who were thus disqualified, and to fill their places with others to whom there could be no exception. The court are of opinion, that by proceeding to trial without exception, this objection to the summoning and empanelling of the jury was waived, and now constitutes no good ground of objection to the verdict.
5. Another exception taken is, that the jury were not directed' to value the proprietary interest of the commonwealth, and deduct it from the aggregate. This is founded on the Rev. Sts. c. 24, §§ 48, 49, 50, which provide for the case where several parties have different estates or interests, at the same time, in any land or buildings, and direct that the jury shall first determine the damage done to the whole, as an entire estate, in fee simple, and then apportion the amount amongst the several parties, having several and distinct interests therein.
This is a very wise and useful provision, and should be earned into effect, according to its true intent and spirit. It is one intended for the relief and benefit of those who are liable to pay damages. But we consider it, to say the least, very doubtful, whether the exception can be taken in this [21]*21stage of the proceedings, if it was not taken at or before the trial. It was not for the sheriff, or for the jury, without any direction in the warrant, without notice from the respondents, that any body but the petitioner had an interest in the land to be appraised, to assume the existence of such an interest, and act upon the assumption.
But it is a more satisfactory answer, that we cannot perceive, that the commonwealth had any such interest in these flats. It is doubtful, on the terms of the statute, whether it extends to persons, having a mere easement, for light, air or way, or other easements of the like kind. The statute speaks of parties having several estates or interests, and obviously, as its primary object, looks to the case of estates for life or years, carved out of the fee, as in the case of Ellis v. Welch, 6 Mass. 246. It may extend perhaps to such easements as constitute a service and burden upon the estate, and thus constitute a part of its aggregate value, to be distributed; and it may possibly extend to other easements, of which we give no opinion. But, upon the grounds suggested, the commonwealth had no easement in these flats. The colony ordinance gives to the riparian owner, “ propriety ” to low water mark. This has been construed to be property, ownership, a full title in fee to the soil. The provision, that the owner shall not by this liberty prevent access to other men’s houses, is a reservation in favor of adjacent proprietors, the owners of such houses and lands, and reserves no easement for the commonwealth.
6. One other exception of the like description remains to be considered, which is, that there was one or more other cases of the same kind, and that they all ought to have gone to the same jury. We are not aware, from any thing apparent upon the record, that any other case of the same kind was pending before the commissioners, at the same time, or if there was, that it did not go to the same jury. It has been decided, that they need not be included in one and the same warrant. Richardson v. Curtis, 2 Cush. 341.
7. The next and by far the most important question, in [22]*22this case, turns upon the title of the petitioner, and the directions of the sheriff, in regard to the division of the flats adjoining the petitioner’s wharf. The whole of the soil, for the taking of which the petitioner claimed damages, consisted of flats lying between high and low water mark. Her title to land bordering on a cove, in which the sea ebbed and flowed, was proved or admitted; and there was no proof or suggestion, that by any conveyance, the flats, or the upland, had been alienated, disconnected from each other; so that the inquiry as to the petitioner’s title involved the difficult question, in what direction the flats of the petitioner were to run, and by what lines they were to be measured and limited. No general rule of division has been laid down, and perhaps, from the nature of the case, none can be laid down. Many coves, inlets, and estuaries of rivers, are so irregular and various in outline, and so traversed by crooked and meandering creeks and channels, from which the sea does not ebb, that it is utterly impossible to apply to them any of the rules which have been applied to other cases. Such, to a consider-; able degree, is the character of the cove in question, though far from being as irregular as many others. The most we can hope to do is, to take the colony ordinance of 1641, and to apply it according to its true spirit; and, by as near an approximation as practicable, to the rales which have been judicially established, to lay down such a line of division, as to give to each riparian proprietor his fair and equal share.
We are of opinion, that the rale of division, prescribed by the sheriff, was not the correct one. It appears, by the case, that the stream running from the tide mills, along through the westerly part of these flats, is a natural channel or creek, from out of which the tide does not ebb. It must therefore be a terminus to a claim of flats in that direction. Sparhawk v. Bullard, 1 Met. 95. The lines directed to be drawn by the sheriff appear to have been drawn from the side lines of the petitioner’s upland, parallel to each other, towards the channel of Miller’s River, without regard to this creek, running from the tide mills. But we think, that this creek not [23]*23only must form a limit to the claim of flats, but must tend to give the direction in which they run. On the estuary of a river, or arm of the sea," through which there is a channel, the lines of flats will ordinarily run towards such channel, and in the most direct course. Ashby v. Eastern Railroad Co., 5 Met. 368.
There is also a creek on the easterly side, extending up from Miller’s River, along in front of the state prison, to a point opposite the western entrance into the state prison, from which the tide does not ebb, which tends to give a character to this cove.
There is also a spur or narrow tract of flats, extending up in a north-easterly direction, betAveen the state prison lands, and the Charlestown burying ground, from which the tide does ebb, but Avhich hardly seems to be a part of the cove, but a strip of flats, detached from it. Considering the peculiar formation of this tract of flats, the court are of opinion, that a line extending up from the upper end of the creek, or Avhat some of the witnesses call the rudiments of a creek, in front of the state prison, nearly in a continued direction, in its present course, to the upland, should form the easterly terminus of the shore line of the cove. This line will strike the upland or high water line, near the north-westerly corner of the burying ground, as laid down on the map. Thence follow the shore line, or line of high water mark, northerly and westerly, to the tide mill dam, and this is to form the upland or shore line of the cove. To form the outer or low Avater line, draw a line across the narrowed space between the two creeks, as the mouth of the cove. If the low water line is shorter than the high Avater line, take the whole length of the upland, and ascertain each OAvner’s proportion, and give him the same proportion on the low water line, and in the same order, and then let lines be drawn from each proprietor’s lines, at high water, to his corresponding points in the low Avater line, and this will define the limits of the flats of each owner.
It was urged in the argument for the petitioner, that the [24]*24direction of each riparian proprietor’s flats was not to be governed by the nearest creek or channel from which the sea does not ebb, if not adapted to navigation ; but rather to the nearest broad, open, navigable channel to the sea. This argument was founded upon the suggestions made in many of the cases, that the colony ordinance was intended to promote the erection of wharves, and to facilitate navigation. No purpose of this sort is expressed in the ordinance itself; but is rather a comment upon its general policy; and we think it is too loose and uncertain, to form the basis of a practical rule for a division of this species of property among conterminous proprietors. The views of such proprietors and of those who might be called upon to declare and determine their rights, would probably differ essentially, as to what the conveniences of navigation, from particular ports to the open sea, would require. The purpose of the ordinance rather seems to have been, to declare the right of private owners in the soil of the flats, between high water and low water, leaving the owners, with their rights thus ascertained, to use or appropriate their property, or sell and dispose of it, in any way which they might deem most beneficial.
But, then, if the directions of the lines of the proprietors of uplands are to be governed by the nearest creek or channel, from which the tide does not ebb, and not by the nearest broad, navigable channel to the sea, it may be asked, why we have not run these lines more directly to the channel from the mills, and not to the narrowest space between the two creeks; the answer is, that the creek from the mills is not straight. After running some distance, in a direction nearly southerly, it makes a bend easterly, below the respondents railroad, almost at right angles with its previous course, so that in effect the lines we adopt are lines running towards that creek. We have therefore thought it most consonant with the principles of division of flats heretofore adopted, to consider the narrowest space between the two creeks as the mouth of the cove to be divided.
If it be urged, that by taking the shortest line between the [25]*25two creeks, as the mouth of the cove, the flats spread out much broader below, before the lines of the proprietors within the cove extend, outward one hundred rods ; and if the lines of these proprietors are narrowed in the manner proposed, they would not get their share outside; we may answer, though it is perhaps not material to the present case, that we see no reason, why, upon the same principle of giving an equal division, these same proprietors should not widen and spread in proportion, below the mouth of the cove, to low water mark, or one hundred rods. We say it will not affect the present case, because, from an inspection of the map, we suppose that at the place where the railroad crosses the flats, the line is as short as at any place between the two creeks.
This mode of ascertaining the extent of the petitioner’s flats may be liable to objections ; we know no mode of dividing these flats, which would be free from objection. Believing that the sheriff adopted a different rule; and gave a different direction upon this point, the court are of opinion, that for this cause, the judgment of the court of common pleas, setting aside the verdict, must be afHrmed, and the case remanded to the county commissioners, with directions to issue a new warrant.
Wilde, J., and Fletcher, J., did not sit in this cause.