This proceeding was had in pursuance of St. 1786, c. 67, § 1. It provides, that persons through whose land a private way for the use of a town shall be laid out, shall receive such recompense as they and the selectmen shall agree upon, to be paid by the town, or as shall be ordered by the justices of the Court of Sessions, on inquiry by a jury, or by a special committee, if the parties agree thereunto. This provision clearly implies, that the parties are to have an opportunity to agree upon the amount of damages, or on a special committee to assess them, before a jury is ordered, and, for this purpose, that they are to have notice of the application, before the order passes. Here the town was a party immediately interested, and as such entitled to notice. The case of Central Turnpike Corporation, Petitioners, 7 Pick. 13, is directly in point.
The appearance of the town before the sheriff’s jury was not a waiver, because neither the sheriff nor the jury cou.d sustain the exception or act upon it, if it had been taken.
Exceptions overruled and judgment of the Court of Common Pleas affirmed.