The petitioners, in this case, who are the owners and lessees of the canal tide mills, in Charlestown, demand damages for taking their land, as they allege, and for an injury to their mill privilege, occasioned by the laying out and construction of the railroad of the respondents. The case comes before this court by an appeal from an adjudication of the court of common pleas, accepting the verdict of a sheriff’s jury, by which damages were awarded to the petitioners, for alleged errors in matters of- law apparent on the record and proceedings. We shall consider some of the more important questions raised by the exceptions and submitted to us in the argument. •
The first objection, taken at the argument, is, that four of the jurors were summoned from Charlestown, in which the premises are located, and which is not an adjoining town.
This objection has been considered in the other cases against these respondents, and overruled, on the ground, that it was an exception to the jurors thus drawn; and that the respondents, if they were opposed to having them sit, should have excepted at the time. This rule is adopted in pursuance of a settled and salutary principle of law, that although a party shall have an opportunity to take advantage of any *100defect or irregularity, which he apprehends may be injurious to him, yet he must avail himself of it in due time and proper order, and having- passed the proper stage, and taken his chance with the jury, as drawn, he shall be taken to have acquiesced and waived his exception. Merrill v. Berkshire, 11 Pick. 269; Simonds v. Parker, 1 Met. 508; Fox v. Hazelton, 10 Pick. 275 ; Hallock v. Franklin, 2 Met. 558.
Had the exception been then made before the sheriff, he might have sustained it, and either postponed the trial and summoned other jurors from another town ; or, if the case was such that he could not lawfully proceed, he might have returned the warrant with the facts; and then the county commissioners might have issued a new warrant, as in case of death or insanity, or other casualty, which renders the execution of the warrant impracticable.
1. It was objected, at the trial, (and this was the subject of the first exception to the rulings of the sheriff,) that the proprietors of the Middlesex canal were interested in the premises; they having, on a conveyance thereof, reserved certain easements therein, for rafting and boating through the mill pond, and laying logs and lumber therein. On referring to the deed in question, and to the proof of the localities, we are strongly inclined to the opinion, that the proprietors of the Middlesex canal had no such proprietary interest in these premises, which would be injuriously affected by the location of the railroad, as would have given them any interest in the subject under the provisions of the Rev. Sts. c. 24, §§ 48, 49, 50. We are not prepared to say, that the legal distinction, between an estate and an easement in the premises taken, will always determine whether one has or has not a proprietary interest, rendering it proper to make him a party or not with the owners, in a claim for damages. Possibly an easement for a mill privilege, for example, may be so large and valuable, as to render an interest therein much more important than that of a lessee for years or a reversioner. Yet there is one provision in the railroad act, which implies that a person having a private right of way may have a separate applicatior *101for damages, by limiting the time within which such application shall be made. Rev. Sts. c. 39, § 71.
But the ground upon which we place our decision of this point is, that this is not an objection which the respondents can make before the sheriff’s jury. The statute provision is designed for the security and benefit of respondents ; that, in a proper case, they may have one entire appraisement of all damages done to any estate, and not stand in danger of being charged with more than one estimate, by being compelled to go to different juries upon distinct applications. And it is competent for the respondents, when called before the commissioners, if there are other persons having claims, to cause them to be summoned and made parties, before a warrant for a jury is ordered. This is the more important for the reasons stated in the case of the Fitchburg Railroad Company against these respondents, (see ante, p. 83,) because the damages of such persons are first to be assessed by the commissioners. If such persons, when duly summoned, do not come in and become parties, they are bound by the result. We are therefore of opinion, that the sheriff did right in overruling this objection. It appears by the record, that a jury was ordered to revise the damages awarded by the commissioners, as well on the motion and request of the respondents, as of the petitioners: it was clearly, therefore, the duty of the respondents to see that the proper parties were in, before they prayed for a warrant to the sheriff.
We may remark, in passing, that two warrants were issued m this case ; a proceeding • which was quite superfluous, although it was proper to recite in one warrant that it was made in pursuance of the request of both parties. It is like an appeal by both parties; when an appeal is allowed, the fact is stated in the record ; but both need not be separately entered and prosecuted.
'i. The deeds from the proprietors of the Middlesex canal to Lockwood, and from Lockwood to Nesmith and Davidson, with the testimony of Whitney, and the plan and survey made by him, being introduced in evidence, each party *102requested the sheriff to instruct the jury, the one that the evidence did, and the other that it did not, make a complete title to the petitioners. But it appears to us, that the sheriff did right in not giving either instruction. It was a pure question of fact, upon the evidence, whether the creek, over which the railroad was built, was part of the pond; it depended upon the description contained in the deed, and the bounds and monuments found upon the ground, answering to such description, and to which the description applied. It was, therefore, rightly left to the jury.
The legal meaning, operation and effect of a deed — the construction of a deed or other written instrument — is a question of law to be decided by the court. If it be uncertain what any particular clause or passage means, it is a patent ambiguity, and must be decided by the court, by the best means in their power, under the rules of exposition prescribed by good authority. But when the ambiguity arises from evidence aliunde, as whether a tract of water of a particular description is a creek or a pond, which depends upon width, shape, connection with other land or water, it is an ambiguity created by evidence ab extra ; it is a latent ambiguity, and must be decided by the evidence. As already said, it is not for the court or presiding officer to direct a jury as to the weight or sufficiency of evidence. If either of the parties had desired the opinion of the sheriff, upon any question of the construction, meaning or effect of the deed, it should have been specially presented and called for. We think the decision was right.
3. The next exception is stated thus: The petitioners Gary and Wesson claiming under the proprietors of the Middlesex canal only, by the lease dated July 1st, 1839, without showing any title in the company, the respondents requested the sheriff to rule, that the lease conveyed no right, title or interest in the land covered by the defendants’ railroad, or any part thereof. The land thus covered, as appears by the evidence, and by the plan, is no part of the mill or land leased, but a part of the pond or creek, opening into the pond raised *103by the tide mill dam for holding in the tide water, for the purpose of driving the mills. The respondents requested the sheriff to rule and instruct the jury, that the lease conveyed no right, title or interest in the land covered by the railroad, or any part thereof; that is, in the land covered by the creek or pond. They also requested the sheriff to instruct the jury to find, and return in then’ verdict, whether or not the lessees had any and what right, title or interest in the said land, or any or what part thereof. This the sheriff declined, but instructed the jury that the lease and the evidence as to the mode and period of use and occupancy of the waters of the pond, if believed, did convey to the lessee, and those holding under him, the right to use and enjoy the waters of that part of the pond or creek covered or crossed by the railroad of the respondents.
This instruction was correct as far as it went; but we think the entire prayer for instructions was such as the sheriff was not bound to give, because it required him to instruct the jury what right, title or interest the tenants under this lease took in the land constituting the bottom of the pond or creek. We think the jury were not bound to return their finding upon that abstract proposition ; or to find a special verdict upon the whole or any particular part of the case, though they might do so voluntarily.
But we are strongly inclined to the opinion, that the respondents were entitled to an opinion and direction, upon the construction of the lease, on this question, namely, whether, if the proprietors of the Middlesex canal were the owners and in possession of the soil of the pond and creeks, as well as of the mills, mill site and dams, their lease operated as a demise of the soil of the pond, or only gave the lessees an easement therein for the use of the water connected with the mills. Considering that there may be a difference in assessing damages, between an interest in the soil covered with tide water and the right to use it for a special purpose, as an easement, in connection with other estate demised, we are of opinion, that if such a construction on a point of law luuf *104been specifically asked for, it would have been the duty of the sheriff, as presiding officer, to give it, and to give it as prayed for by the respondents. The lease contains specifically a demise of the mills, mill site, wharves, sheds, dwelling-houses, &c., but nothing including the soil of the pond:. the use of the pond, as a mere easement, would pass with the mills as incident; but a use would be sufficient to satisfy the implied grant under the term water privilege, and would not necessarily carry with it any greater interest in the soil of the pond.
A question might be made, whether the same rule does not apply, to the deed of conveyance afterwards made by the proprietors of the Middlesex canal to Lockwood, under which the title in fee is claimed. An interest in the land may be as effectually created by a lease as by a deed in fee ; the former title being as perfect for the time as the latter in perpetuity. But there may be, and in this instance we think there is, a difference in the terms of the instrument. By the deed of conveyance, the proprietors of the Middlesex canal conveyed to Lockwood, not only the mills, wharves, sheds, flats, &c., but also all the right, title, interest and estate in and tó the mill pond, and the land and flats covered with water, lying northerly and north-westerly of the aforedescribed premises, bounded as follows, &c., describing the pond by a very general description. " Now, if the canal company owned the soil of the pond thus described, the deed was sufficient to pass it; and if the use of it for more than forty years to raise a head of tide water to drive the mills, without any adverse claim, was such prima facie evidence of possession and title, as would be good until a better title was shown, and if the land over which the railroad passed should be found to lie within the limits of the pond, in contradistinction to the creeks running into it, the deed would be prima- fade evidence of title to the soil in those grantees, and entitle them to maintain a claim for damages against these respondents. But of this it is not necessary now tc give a decided opinion.
*1054. The next exception is thus stated: The respondents requested the sheriff to instruct the jury, that the petitioners had no right to have the flats where the respondents’ structure and railroad stands, (being the flats belonging to the petitioners, outside of their mill pond, to the south and east thereof, and between their mills and the channel from which the tide does not ebb,) remain open for the flow and reflow of the tide, or for the purposes of navigation to their wharf, otherwise than they then did; and also that the jury might find and return in their verdict, whether or not the petitioners, or any of them, had any and what right to have the flats, or any and what part of them, remain open for their use, for either of the purposes aforesaid. These instructions the sheriff declined to give, but did submit to the jury the right of the petitioners to the flats referred to for the purposes mentioned, as a matter of fact upon the evidence, for them to determine the same so far as respects the damages of the petitioners. He also instructed them as to the form of the verdict.
This direction in regard to flats, we think, cannot be supported. The question was as to the right of riparian proprietors upon salt water, over an open tract of flats from which the tide wholly ebbs, and lying between upland territory and navigable water, kept open and unobstructed for the free flow and reflow of the tide water, for their mills or for navigation. This was a question of law, depending on the general laws of property, the colony ordinance in regard to flats, the usages of the country, and judicial decisions, and was proper to be decided as a question of law. And we are of opinion, as matter of law, that the petitioners had no right, as riparian proprietors, to have their flats kept open and unobstructed for the purposes stated, and that the jury should have been so instructed ; also, that the petitioners, as tide mill owners, had no right, either as against the public or as against conterminous and adjacent proprietors, to have their flats kept open, but only to the flow of water in the channel below low water mark, and where the tide does not ebb. The adjoining *106proprietor, to the extent of one hundred rods, may build solid structures, and thus obstruct the flow and reflow of the tide, without objection, provided he does not wholly cut off his neighbor’s access to his house or land; and if the mill owner or conterminous proprietor suffers in consequence, it is damnum absque injuria. The public have a right to regulate the use of public navigable waters for purposes of passage ; and the erection of a bridge with or without a draw, by the authority of the legislature, is the regulation of a public right, and not the deprivation of any private right, which can be a ground for damages. So far, therefore, as the railroad erected by authority of the legislature affected the right of the petitioners to pass or repass to and from their lands and wharves with vessels, it was a mere regulation of a public right, and not a taking of private property for a public use, and gave the petitioners no claim for damages.
5. The ground of the next exception was the refusal to grant the fifth prayer of the respondents for instruction to the jury. As we understand it, this was substantially a renewal of the third prayer in regard to title, and depended upon the question of fact; and the direction in effect was, that if the petitioners had either a title to the soil, or a right of flowage at that place, which was injuriously affected by laying the railroad over it, it was a ground of damage. This appears to be unobjectionable:
6. The last exception was, that the petitioners were not owners of the land in question when the same was taken by the respondents. Whether the filing of a location is the only act of taking which fixes the right of private proprietors to claim damages, and the time from which the limitation runs, (Charlestown B. R. Co. v. Middlesex, 7 Met. 78,) is a question of difficulty. It would be difficult to say that one whose land has been appropriated and actually used could not apply for his damages. The corporation may never file their location. But supposing this to be so, the act of filing a location is a formal act of the assertion of a right, and it is ¿lotice to the public and to all parties interested.
*107It is a mere act of location, and the land may be considered prima facie as taken, and the party then owner may claim accordingly, and may recover, unless another party claiming to be owner, and to have a right to damages on the ground of an earlier title, claims at the same time, and then the respondents must allege an_i ¿.rove such prior title in bar of the claim.
This seems to be just to the respondents, to save them from paying twice.; but it prevents them from denying that their own authoritative act, intended as definitive, and to give notoriety, is not an act of taking, within the statute.
Verdict set aside, and cause remanded to the county commissioners to issue a new warrant to assess the petitioners' damages.
Wilde, J., and Fletchee, J., did not sit in this cause.