These were claims for damages, for land taken by the county comjnissioners to make a new common highway. The appellants petitioned for a jury, which was ordered. At the hearing before the sheriff, certain exceptions were taken by the petitioners ; but a verdict was returned for the respondents, which was affirmed by the court of common pleas; and these cases now come before this court by appeal from that judgment.
The question here is upon the exceptions taken before the sheriff. The ground of objection to the whole claim was, that, at the time of the adjudication of the common convenience and necessity of the highway prayed for, the petitioners agreed to claim no damages, or, in other words, they waived their claim. When commissioners are about laying out a highway, one important element in the determination of the question before them is the cost to the public. If land owners, desirous of having the road established, in order to induce the commissioners to lay it out, and whilst the question is still open, agree to claim no damages, they are bound by such agreement. A subsequent claim of damages is inconsistent with good faith and fair dealing; and we think the agreement not to make such claim is a .good legal bar. The claim of the land owner is merely to a sum of money. The right to take the land is a right conferred by law, and does not depend on the consent of the land owner, *364Fuller v. Plymouth, 15 Pick. 81; Fitch v. Seymour, 9 Met. 462.
1. The first exception was, that the sheriff did not permit a witness to be examined, in order to prove that the petitioners claimed damages, at the time of the location of the way, which was subsequent to the time of adjudication. If the land owners had not effectually waived their claim before, this proof was unnecessary: if they had, it would be unavailing ; in either aspect, it was immaterial.
2. The second exception was, that a different question was presented by the respondents before the jury, from that which was made before the commissioners; but the difference is rather formal than substantial. The commissioners had returned, that they awarded no damages in favor of the petitioners, because the benefit to these land owners was equivalent to the damage. The ground taken before the jury was, that the petitioners had waived their claims to damage. But these grounds, though they present the question in different aspects, are not inconsistent, and both bear directly upon the question, whether the petitioners were entitled to damages against the county, which was the real question in issue. If, upon a compromise of benefits and injuries to the petitioners, the commissioners were of opinion, that the former equalled or preponderated over the latter, their conclusion would be, that the petitioners had sustained no damage. If the petitioners themselves took the same view of it, and expressed their willingness to renounce all claim to damages, the result would be the same against the claim.
Verdict affirmed, and judgment for the respondents. in aoth cases.