This case comes before this court by way of appeal from a judgment of the court of common pleas, setting aside the verdict of a sheriff’s jury, assessing damages occasioned by taking land for a town way. The ground of the objection to the verdict, taken before the court of common pleas, and insisted on now, is, that the application to the commissioners for a jury was made too late, being more than one year from the time of the laying out of the road.
There is nothing, we believe, in the charter of the city of *34New Bedford, St. 1847, c. 60, wMch affects this question; there is the usual proviso, that all the powers before vested in select* men shall be vested in the mayor and aldermen, § 8; and that the city council shall have the same power in relation to ways that selectmen and inhabitants of towns now have; but all petitions, &c., are to be first acted on by the mayor and aider-men, § 13.
By the Rev. Sts. c. 34, §§ 66, 69, selectmen are to lay out town ways, subject to be accepted and allowed at a public meeting of the inhabitants; notice to be first given by the selectmen to all the owners of land over which the way is proposed to be laid.
This laying out of a town way is distinguishable from the case where damages are allowed to an adjacent proprietor, on account of change of grade, as in Brown v. Lowell, 8 Met. 173, and Flagg v. Worcester, 8 Cush. 69; or change of one kind of road for another, as in Monagle v. County Commissioners, 8 Cush. 360. In those cases, damages to individuals are only occasional and exceptional.
But in laying out a new road, whether private or town way, the selectmen necessarily name the individuals over whose land the way passes, as commissioners do in case of laying out a highway; and, in naming such individuals, they annex the damages to be awarded to each respectively, or, by the omission of any sum in the column of damages, indicate that none are due. White v. County Commissioners, 3 Cush. 361. The assessment of damages in these cases is therefore part of the laying out of the selectmen, and of their notice to the town, and embraced in their acceptance and confirmation. The time of limitation of one year, within which an application must be made by the party aggrieved for a jury to ascertain his damages, is to be computed, according to the words of the statute, as one year from “ the laying out.” Eaton v. Framingham, 6 Cush. 345. Bennett v. County Commissioners, 4 Gray, 359.
But it is objected, that whether the petition was presented within the time limited by law was a proper question for the county commissioners; that it is not open on a return of the *35verdict; and that if the county commissioners decided any material question contrary to law, it is open t'o inquiry and reversal on certiorari, and is not examinable here.
This objection we should regard as one of great weight, and perhaps quite decisive, if no satisfactory answer could be made to it. The court think it of great importance, that if the proceedings of the court of county commissioners are illegal or irregular, the party shall take his exception to them at once, and proceed by proper process and have them reversed; and one obvious reason is, that parties may not be compelled to go through a laborious and expensive trial before a sheriff’s jury, upon erroneous proceedings which may be afterwards set aside.
Under the circumstances of this case, it appears to us that this objection, taken upon the first legal appearance of the respon dents upon the summons before the sheriff’s jury, was seasonable ; that the same was presented, and with the verdict brought before the court of common pleas, and by appeal to this court. The county commissioners had no jurisdiction of this petition filed half á year after the time had expired, allowed by law for filing such application. No order of notice was issued, and no notice in fact given, and no right, therefore, was waived by the respondents in not taking their objection before the commissioners.
Judgment of the comí of common pleas, disallowing the verdict, affirmed, and petition dismissed.