When this case was here before it was held that the allegations of the petition set forth a case arising under the first section of R. L. c. 48, and not under the twelfth section. It was stated, however, in the opinion of the court, that “from the recitals in the petition for assessment of damages, which are all that is before us to show the details of the proceedings, it is not plain beyond the possibility of question whether the commissioners were acting under the R. L. c. 48, § 1, and making an alteration of the highway, or under the R. L. c. 48, § 12, and merely relocating it. If they were acting under the former section the petition for the assessment of damages should be brought against the county of Norfolk, which would be liable under the R. L. c. 48, § 52; if under the latter the petition should be brought against the town of Wellesley, which was ordered by the commissioners to pay the expenses of the change, including the land damages. R. L. c. 48, § 12. The only question before us arises on the demurrer of the county.” Livermore v. County of Norfolk, 186 Mass. 133, 134.
There has since been a trial in the Superior Court upon the merits before a jury, and the case comes before us upon a report made by the presiding judge. At this trial the records, and proceedings of the county commissioners appeared in evidence, substantially as in Bennett v. Wellesley, ante, 308, and for reasons stated in that case the majority of the court are of opinion that in construing the petition for the changes in Worcester Street as a petition under R. L. c. 48, § 12, and in ordering the expenses and land damages to be paid by the town of Wellesley, *328the commissioners made no error in law. The order therefore is valid.
It is urged, however, by the petitioners that, even if the order is valid, the county in the first instance must pay the land damages and then recover them from the town; and R. L. c. 48, § 52, is recited in support of that proposition. The history of the legislation shows that this position is untenable. See St. 1835, c. 152, § 8; Rev. Sts. c. 24, § 9; St. 1851, c. 214; Gen. Sts. c. 43, § 12; St. 1873, c. 165; Pub. Sts. c. 49, § 13; Rev. Sts. c. 24, §§ 38, 42; Gen. Sts. c. 43, § 47; Pub. Sts. c. 49, § 58; Damon v. Reading, 2 Gray, 274; Brigham v. County of Worcester, 147 Mass. 446. It follows that the exception of the county to the refusal of the court to rule that “on all the evidence the petitioners cannot recover against the county of Norfolk in this action ” must be sustained. By the terms of the report, therefore, the petition must “be dismissed as to the respondent county.” This renders it unnecessary to consider the other exceptions of the county.
At the close of the petitioners’ evidence the judge ruled that the proceedings of the commissioners were under R. L. c. 48, § 1, and that the petition could not be maintained against the town of Wellesley. To the ruling that the petition could not be maintained against the town the petitioners excepted. For reasons already stated the majority of the court think that this exception must be sustained. By the terms of the report, “ if the exception of the petitioners as to the ruling of the judge ordering the petition dismissed as to the respondent town is sustained, or in case any other exceptions of the petitioners are sustained, such entry is to be made as law and justice may require.”
It is apparent from the report that, notwithstanding the decision upon the demurrer, the town, as was very proper, was represented by counsel at the trial on the merits and was actively engaged in opposition to the petitioners’ case until the ruling was made that the petition could not be maintained against it. This ruling, as before stated, was made at the close of the petitioners’ evidence, and the town was thereby relieved from further, action at the trial; and it does not appear that it took any further action in defence. Under these circumstances it is *329plain that to allow the verdict to stand as against the town would be holding the town when it has not been heard. Justice requires that the verdict should be set aside.
C. E. Washburn, for the petitioners. C. F. Jenney, for the county of Norfolk. V. J. Loring, (C. S. Quinn with him,) for the town of Wellesley.Petition dismissed as against the county. Verdict set aside and ease to stand for trial as against the town.