Bigelow, J.
1. The objection to the warrant, that it did not contain a direction to the sheriff to summon a jury from towns in the county of Plymouth, cannot prevail. It is sufficient that the sheriff was directed “ to summon, empanel, and cause to be sworn, according to law in such case made and provided, a jury of twelve men,” and that all the proceedings of the sheriff were strictly in conformity to this precept.
2. The objection, that the town is not liable to the petitioner for his damages occasioned by the raising of the highway in question, because the same was done by the surveyor of highways without instructions from the selectmen of the town, is also untenable. The change in the grade of the road was made solely for the purpose of repairing it, in pursuance of Rev. Sts. c. 25, § 6. It was fully within the power and authority of the surveyor to make such repairs, without any instructions from the selectmen, and the town is liable for the damages -thereby occasioned. Callender v. Marsh, 1 Pick. 418, 426; Elder v. Bemis, 2 Met. 599, 604.
3. We are also of the opinion that the instructions to the jury as to the effect to be given to the conversations of the petitioner with the surveyor and his assistants were correct, and that the petitioner was not estopped thereby from claiming damages for raising the grade of the road. It is undoubt*414edly true, as a proposition of law, that where a party gives a license to another to do certain acts upon his land, he cannot afterwards claim damages for the acts done in pursuance of such license while it continues and before its revocation. Such license operates as an estoppel in pais. But the facts do not bring this case within the rule. The petitioner sets out in his petition as the cause of damage the raising and grading of the highway. He does not claim damages for land taken to place gravel on, nor for the incumbrance of his estate by gravel actually put thereon. Although these might well come in as incidents of damages, it is the raising and grading of the way which is the gist of his petition, and the main ground of injury to the petitioner. Now, upon reference to the testimony of the surveyor and his assistants, it will be found that the raising and grading of the road had been completed before the con versation with the petitioner took place, which is relied on as an estoppel, and that all that was said by him related to the building of a sidewalk and the placing of gravel on his land for that purpose. It had no reference whatever to the raising and grading, which had then been completed. The utmost, therefore, that could be claimed in behalf of the respondents upon this evidence was, that the petitioner had waived any right to damages for the placing of gravel upon his land for the purpose of building a sidewalk, but not that he was thereby estopped from recovering compensation for the injury to his estate, occasioned by raising the grade of the highway, and thereby obstructing his premises and cutting off ready access thereto. The instructions by the sheriff to the jury seem to us, therefore, to have been well adapted to the case as it was presented by the evidence, and the respondents have no valid ground of exception thereto.
Judgment of the cowrt of common pleas, accepting the verdict, affirmed.