The opinion of the court was delivered by
Bennett, J.
The only question in the case is, whether the town, upon the trial, could avail themselves, before a traverse jury, upon a plea of not guilty, of the fact, that the road was laid out along the side of the Vermont and Massachusetts Railroad; and that the road, in places, is laid in part upon land taken by the railroad company for railroad purposes. We do not learn that any objections have come from the railroad company, or from any one in their behalf, against the laying the road, or against the town’s working it. The town was a party to the adjudication of the County Court, establishing the road, and to the order of the court for making and opening it, and they are binding upon the town, and cannot be set aside in this collateral manner. This matter might, and • *247perhaps was, urged as a reason why the County Court should not have established the road, but whether it was or not, is not material to this case. If the railroad company .should attempt to establish a right paramount to the public, to any portion of the ground-where the road was laid, it will then be in time to pass upon their claim, and the effect of the adjudication of the County Court; as to the railroad company. As the adjudication of the County. Court' is conclusive upon the town, they cannot, in this collateral manner, repudiate the effect of that adjudication, by attempting to stand upon the rights of the railroad company, between whom there is no privity. If the town have not a right paramount to the railroad company to occupy that portion of the ground where the road, as laid, encroaches upon the railroad grounds, it might furnish a reason why there should be a re-survey of the road, or why it should be discontinued, and this may be a proper course for the town to pursue. If the road was laid upon the railroad grounds-by the consent of the railroad company, it may be that even they would now be concluded from making any objection; but this is a point not before us.
The judgment of this court is, that the defendant take nothing by his exceptions.