This is a petition for a writ of certiorari to quash the proceedings of the county commissioners in awarding damages to Mary Harris and another, for their land, taken by the petitioners for their road, in pursuance of the Rev. Sts. c. 39. The error alleged, is, that the application to the commissioners to estimate said damages was not made within three years after the land had been taken, as required by <§> 58. That section provides that “ no application to the commissioners, to estimate damages for land or .property hereafter to be taken, shall be sustained, unless made within three years from the time of taking the same,” with an exception not applicable to the present case. The question is, whether the application was made within three years, as required by this provision ; and this depends on the true meaning of the words “ taking the same.” The respondents’ counsel contend, that the lands were not taken until the petitioners entered thereon and commenced making their road. On the other hand, it is contended, m *83behalf of the petitioners, that the location of their road, and filing the same in the office of the county commissioners, was a taking within the true meaning of the statute.
The meaning of this section, without reference to other parts of the statute, is somewhat obscure; but with such reference, we think it sufficiently clear.. By § 75, every rail road corpo ration is required, in all cases, to “file the location of their road, within one year, with the commissioners of each county through which the same passes, defining the courses, distances, and boundaries of such portion thereof as lies within each county respectively.” And by § 60, it is provided, that after any rail road corporation “shall, by virtue of their charter, have taken any lands or other property, for the purpose of their rail road, the owner of any such land or other property may, at any time within three years from the time of taking the same, demand in writing of the treasurer or principal agent of the cor poration, a plan, or description in writing, of the land or other property so taken; and said corporation, within thirty days from the time of such demand, shall deliver to him such description or plan; and all the rights of said corporation to enter upon or use said land or other property, except for making surveys, shall be suspended until they shall have so delivered such description or plan.” By the taking of lands, as mentioned in this latter section, we think the filing of the location of the road, as required by ‘§>75, \vas intended, and not the making of the road; for if the latter had been intended, no plan or description of the road would seem to be necessary or useful. The commencement of making the road would be a sufficient notice of its location. So the suspension of the rights of the corporation to enter upon or use said land, except for making surveys, implies, we think, that a plan or description of the road may be required before the road is made, or is begun to be made, although it cannot be required until after the land is taken.' And a similar inference may be drawn from <§>61, which requires the corporation to give security for damages and costs, if requested; and if not given, their rights to enter upon or use the land, except for making surveys, are to be suspended, as before mentioned. It *84is possible, though not probable, that surveys might be required after the rail road had been located, and the making of it had commenced; but it is not to be presumed that the legislature intended to provide for such a possibility. By § 56, the corporation are made “ liable to pay all damages occasioned by laying out and making and maintaining their road.” The words “laying out ” in this section, and the words “ taken ” and “ taking,” in § 58., were intended, as it seems to us, to convey the same meaning'. The remaining part of the section which makes a distinction between an intention to take lands or materials necessary for the purpose of making or securing a rail road, and the actual taking, does not apply to land over which the road is laid, and has but little, if any, bearing on the present question.
Taking into consideration these various provisions, we are of opinion, that the time of limitation of the application for the assessment of damages, by § 58, must be understood to have commenced on the petitioners’ filing the location of their road with the county commissioners. This is equivalent to the laying out of highways and turnpike roads by the county commissioners. It was by that act that the corporation acquired a right of way over the land. They thereby took a title, and thus they took the land, according to the language of the statute.
It has, however, been argued, that by an agreement between the parties, the petitioners have varied, and thereby waived their location. But we cannot so construe the agreement. The petitioners agreed to extend their rail road sixty feet on and over the Harris Wharf. For this extension the owners of the wharf agreed to relinquish their claim for damages. But this does not imply an agreement, on the part of the petitioners, that they would not extend their rail road farther. And it was not so understood by the parties; for the owners of the wharf objected to any farther extension, and claimed the right to recover compensation for any damages they might sustain thereby. We are therefore of opinion, upon the whole matter, that the claim for damages was, before the application to the county commissioners, barred by the statute. The notice given *85to the petitioners, within the three years, that damages would be claimed is not material; and the claim for damages ought not to have been allowed by the county commissioners.
Petition granted.