A great number of questions in relation to the alleged inaccuracy of the rulings and instructions to the jury of the officer who presided at the trial are presented in his report. If it were only necessary to determine whether the verdict returned into court should be accepted or set aside, there would be no occasion now to advert to any other than those, which, upon examination, we have found to be erroneous. But, as a new trial is the necessary consequence of the rejection of the verdict which has already been rendered, it is essential to secure the regularity of future proceedings in the case, and to prevent the repetition of exceptions which have already been taken to the rulings and directions of the sheriff upon questions which are likely hereafter to arise in the case, to consider and determine all those which are now before the court.
1. The petitioners desired that the jury should alter the laying out of the highway where it crosses their railroad location ih such manner that it should pass over their road by a bridge; and they offered to produce evidence to show that this was a feasible method of constructing the highway, and would, if accomplished, greatly promote the security of all persons having occasion to use or travel upon either of the roads. But the evidence so offered was rejected, upon the ground that the jury had no lawful authority to render a verdict requiring such alteration to be made. This was correct. When the public convenience and necessity require that a new highway shall be laid out across an existing railroad, the county commissioners in their respective counties are empowered to locate and establish it; and it is thereupon made their duty to determine whether it shall be laid out over, or under, or on a level with the railroad. *329Their determination and direction relative to this whole subject are final and conclusive. St. 1857, c. 287, §§ 1, 4. Gen. Sts. c. 63, §§ 57, 58. A party aggrieved by the doings of the commissioners in the location of a highway may, upon proper preliminary proceedings, have a jury to determine the matter of bis complaint, and the jury may make any alterations that are prayed for between the termini, so far as they shall think them necessary or proper. Rev. Sts. c. 24, § 13. Gen. Sts. c. 43, §§ 19, 20. This is all the authority that is given to them upon this subject, and it is to be exercised only within the limits to which it is restricted. Lanesborough v. County Commissioners, 22 Pick. 280. Gloucester v. County Commissioners, 3 Met. 375. The phrase “ alterations between the terminiin the meaning of the words in their ordinary use, distinctly imports a change in the course or direction of the road, and not in the mode of its construction, or in the place and manner in which it is to be built and finished. In respect to this latter, the jury had no duty to perform.
2. The deed of Emerson to the petitioners was admissible in evidence for the purpose for which it was offered. The reservation contained in it created an easement in the land conveyed; and, as that necessarily detracted somewhat from the value of the unincumbered estate, it was essential to a just estimation of the injury done to the petitioners that it should be taken into consideration in determining the amount of damages which 1hey were entitled to recover. Tufts v. Charlestown, 2 Gray, 271. S. C. 4 Gray, 537. The compensation to be recovered should certainly be limited to the right and interest which they had in the land; and although the incumbrance created by the reservation in the deed may be thought to have detracted very inconsiderably from the value of the estate of the petitioners, it ought not, for that reason, to be overlooked or disregarded in the estimate of the damages for which a verdict was to be rendered.
3. Of the ten several instructions, which the petitioners requested the presiding officer to give to the jury, the second, fifth and ninth, only, appear to embody correct legal propositions apolicable' to the evidence in the case. These should have been *330adopted. All the others were rightly refused; and for reasons so obvious that it seems unnecessary to go into a: detailed statement of them, beyond what we have occasion to give upon the same topics in another connection.
4. It appears from the report that the location of the railroad of the petitioners was made partly upon land formerly belonging to Emerson, and partly upon land formerly belonging to Norcross. Before any conveyance was made to the petitioners. Norcross had staked out a way upon his land up to the line of division between his own land and that of Emerson. After that way had thus been so staked out, Emerson made his deed to the petitioners, reserving a right of way over the land conveyed by him, to himself, his heirs, and his assigns of his adjoining land. Norcross afterwards conveyed his land to the petitioners, but did not in his deed reserve to himself or to any one else any right whatever in the premises conveyed. Upon this state of facts, the respondents contended that Emerson and his assigns of the adjoining tract had under his deed a right of way across the whole location, including the land described in the deed of Norcross as well as in his own; and that this right of making a crossing over the whole location ought to be considered by the jury as diminishing the damages sustained by the petitioners by the laying out of the highway. This position was sustained by the sheriff, who instructed the jury in relation to it, that the reservation in the deed of Emerson was conclusive against the grantees, and estopped them from denying that there was such an existing way, or that there was an open way over the land which the petitioners held under the deed from Norcross. This was manifestly incorrect. A grantor may reserve to himself, his heirs and assigns, an easement or other right in the land which he conveys ; but it is too obviously true to require argument to establish the proposition that, by a mere reservation of a part of that which belongs to himself, he cannot acquire any title to, or interest in an estate which is owned by another person. And, as the respondents did not assume or profess that Emerson ever acquired any right of way over the land of Norcross, by prescription or in any manner except by the reservation in his own *331deed the question, which they were allowed to propose to several of the witnesses, whether they had seen persons owning land which formerly belonged to him passing over the private crossing from one side of the railroad to the other, ought, upon the objection of the petitioners, to have been excluded. It was wholly immaterial to the issue. Such use, if it had ever occurred, may have been by permission of the railroad corporation, or a mere trespass under the claim of right. At any rate, it had no tendency to show that Emerson or his assigns had any easement or other interest in the land conveyed by Norcross to the petitioners, or that, as against them, there was any incumbrance upon it.
5. The supposed or possible advantage to the petitioners by an anticipated increase of trade and business on their railroad in consequence of the sale, likely to result from the laying out of the highway, of many of the house lots into which the land of Emerson bad been divided, was too remote, inconsiderable and contingent to be made the basis of any proper estimate of the damages which they sustained by the laying out of a highway, or of the compensation which ought to be awarded to them. The evidence produced by the respondents upon that subject was inadmissible, and the inquiries made of witnesses in relation to it should have been disallowed. From these considerations it is apparent that the instruction given by the sheriff to the jury on this subject was erroneous. It was detrimental in its tendency to the interest of the petitioners, and their exception to it is well founded.
6. The payments, if any, which had been made by the petitioners, in consequence of accidents which had happened to persons and property at the several crossings of their road at points between Reading and Boston, could have no tendency to show that the crossing of the highway over their railroad, upon the lands conveyed to them by Emerson and Norcross, was not dangerous, and did not expose them to any hazard of incurring injury or loss thereby. The crossings of highways over railroads are necessarily so different in situation, in construction, and in surrounding objects; and accidents occurring *332at such places are so variant in the combination of circumstances by which they are produced, as well as in the degree and importance of the resulting injurious consequences; and are so often caused by the failure to exercise that vigilance and care which should be used to guard against their occurrence, and by means of which they might be prevented, that mere payments made by a railroad corporation on account of damages done at one such crossing can afford no standard of comparison whereby to form a judgment as to the actual safety, or of the exposure of persons and property to peril, at any other. For these as well as other obvious reasons, the inquiries which the sheriff allowed to be made of witnesses in relation to such payments ought not to have been permitted.
7. It is impossible to see, in any aspect of the facts stated in the report, how the calculation or estimate of the superintendent of the road of the comparative profit of the South Reading travel, and of the travel from beyond Lawrence and Haverhill to and from Boston, could have any bearing upon the question of damages caused to the petitioners by the laying out of the highway over their location. Such an estimate would seem to have no tendency either to diminish or to enhance the amount for which the verdict of the jury should be returned. It was foreign to the issue to be determined; and all evidence concerning it ought to have been excluded. If it had any effect upon the jurors, it must have been injurious and improper; because it withdrew their attention from the real question in controversy, and occupied it with another upon which they were not called upon to render any decision.
8. The instruction that, unless there had been some extinguishment of the right reserved by Emerson to himself and to his heirs, and to his assigns of the remaining land, (which we understand the presiding officer to have meant by the phrase “ originally acquired by the grantor,” as he used it,) the petitioners could not afterwards set up that they were not liable to have such crossing made and used according to the true intent and meaning of the deed, was correct in terms, and would have been correct as applicable to the facts found upon the trial, if *333the true effect and meaning of the reservation in the deed of ■Emerson had been accurately stated and explained to the jury. But in this, as has already been shown, the sheriff erred by ruling that under and by virtue of the reservation a right of -way was acquired over the land of the petitioners, which they derived from the deed of Norcross. Considered in connection with, and as embracing this ruling as a part of it, the instruction given must be held to have been erroneous.
9. The further and last instruction that, “ if the reservation in the Emerson deed diminishes the value of the petitioners’ premises, the jury may reduce their damages so much,” was, as an abstract proposition, correct. But it should have been accompanied by an accurate statement and explanation of the meaning and effect of the language by which that reservation was made, and of the limitation beyond which it could not be extended.
As the rulings and instructions of the sheriff, acting as the presiding officer at the trial, were, in the several instances above noticed, erroneous, the verdict must be set aside, and a certificate sent to the county commissioners to issue their warrant for summoning another jury.