We think this action was prematurely commenced, as the plaintiff commenced it before his land had been entered upon and possession thereof taken for the purpose of making the road. Though damages may be assessed within one year from the laying out of a way, (Rev. Sts. c. 24, § 76,) yet payment cannot lawfully be demanded, until the land, over which the way is located by the county commissioners, is entered upon and possession taken for the purpose of constructing the way. See St. 1842, c. 86, <§> 1, and the case of Harding v. Inhabitants of Medway, 10 Met. 465.
The town was a party to the proceedings, and was aggrieved at the amount of the damages assessed, and had a right, by the Rev. Sts. c. 24, <§> 13, to the verdict of a jury in the estimation, of damages. Inhabitants of Lanesborough v. County Commissioners of Berkshire, 22 Pick. 278. Baker v Thayer, 3 Met. 312. The town seasonably applied to the *125county commissioners for a jury. And it was admitted by the plaintiff’s counsel, at the argument, that the commissioners issued a warrant for a jury; that a jury, by their verdict, reduced , the damages; and that then verdict was accepted by the court of common pleas. The former proceedings were therefore annulled, and the plaintiff’s right to the damages awarded by the commissioners was taken away.
The authority of the selectmen to act for the town, in applying for a jury to reduce the damages, may be presumed, in the absence of all evidence to the contrary. Their authority was not questioned at the trial. If it had been, the defendants might, perhaps, have shown it. In the case of Baker v. Thayer, now cited by the plaintiff’s counsel to show that selectmen have no such authority, it was expressly agreed by the parties that the selectmen “ were not authorized by the town to petition for a jury.”
The evidence, upon which the questions were raised in this case, we think, was rightly admitted.
Exceptions overruled.