1. We have no doubt of the power of the county commissioners to allow an amendment of a petition pending before them, after hearing the parties and before issuing a warrant for a jury. A petition of this character is in the nature of a civil action, and the commissioners, in exercising jurisdiction over it, wield judicial power, and are within the spirit, if not the letter, of the Rev. Sts. c. 100, §§ 21, 22, which authorize courts to allow amendments either in form or substance of any process, pleading or proceeding. See Andover v. County Commissioners, 5 Gray, 396; Ellis v. County Commissioners, 2 Gray, 374.
2. The description in the petition and warrant was sufficiently definite and particular. It gave the length and the width of the land taken, and described it as “ lying a little west of the draw in their railroad bridge from Charlestown to Somerville, and nearly contiguous thereto,” and referred for greater certainty to the actual location and construction of the Grand Junction Railroad over it, which was within the knowledge of these petitioners.
It is not necessary that the petitioners should set forth their title exactly; the damages will be assessed according to the title proved at the hearing.
3. The two railroad corporations were authorized by the St. of 1852, c. 306, jointly or severally to locate, construct and maintain this railroad. They did in fact act jointly in taking the property of the Fitchburg Railroad Company, and were therefore jointly liable to the petitioners for the damages sustained by their joint act.
4. A definite- reference to a plan in a written description is part of the description, and may be referred to, to explain and make certain the terms of the description. Hazen v. Boston & Maine Railroad, 2 Gray, 579. Andover v. County Commissioners, 5 Gray, 396. And the master finds that, with the aid of the plan,the location on the,ground maybe ascertained and defined. This is a compliance with the Rev. Sts. c. 39, § 75.
5. The right of a railroad corporation to recover damages for *565the use of its road by crossing it with another public highway has been fully considered in a recent case, the principles laid down in which are applicable to the present. Old Colony & Fall River Railroad v. County of Plymouth, ante, 155.
The fact that that part of the location of the Fitchburg Railroad, over which the road of these petitioners is laid, is over a navigable stream does not affect the right-of the corporation to claim the damages which may result from the acts of these petitioners. The grant by the legislature to the Fitchburg Railroad Company of a right to cross Miller’s River with their road was not a new exercise of the power to regulate a navigable stream. It was a grant of an important and valuable privilege or easement, which is a part of their franchise, as much as if it had been over private property. If the acts of these petitioners in any degree impair its value, they are liable to make due compensation therefor as for property taken for a public use. Nor is there anything in the act authorizing these petitioners to construct a railroad over that of the Fitchburg Company, to lead to the inference that it was intended as an exercise of the right reserved to the legislature of altering, modifying or repealing the charter granted to the Fitchburg Railroad Company. It is the ordinary case of an authority conferred on a new corporation to take a portion of the franchise created by a previous grant, for which it was the intention of the legislature that due compensation should be made according to standing laws. Parker v. Boston & Maine Railroad, 3 Cush. 113. Boston & Lowell Railroad v. Salem & Lowell Railroad, 2 Gray, 1. Central Bridge v. Lowell, 4 Gray, 474.
The only question in this case is, whether the Fitchburg Railroad Company can maintain their petition and have any damages assessed by the jury. The question, • what are proper elements of damage, will arise at the hearing before the jury.
Writ of certiorari refused.
Hoar, J. did not sit in this case.