Highways' may be laid out by the selectmen, within the limits of a. town, whenever there.is occasion therefor, either for the accommodation of the public, or the person applying. Rev. Stat ch. 49, § I.
The selectmen are required to assess the damages sustained by each owner of the land taken for a highway, and insert the same in their return. Rev. Stat. ch. 49, § 13.
The damages assessed upon the laying out of any highway for the accommodation of individuals, are to be paid by them. Those assessed upon the laying out or altering of any highway for the accommodation of the public, are to be paid by the town in which the land taken for such highway shall lie. Rev. Stat. ch. 52, § 7.
In addition to these general provisions upon the laying of highways in any town, we have the special act of July 3, 1847. This act provides, among other things, that if ■ any railroad corporation shall, in constructing or maintaining their railroad, throw any obstruction upon, or cause any obstruction or injury to any highway, bridge, turnpike or private way; or permit any such obstruction or injury already existing, to continue for the space of sixty days after the notice of the same has been given, in any such case the person or persons or corporation, shall have and maintain an action on the case, and recover reasonable damages for the injury. Provided, that in any case of obstruction or injury.to any *271highway, turnpike, private way or bridge, as aforesaid, by any railroad corporation, such railroad corporation may, within sixty days after notice of such obstruction or injury, in writing, given as aforesaid, apply to the road commissioners of the county in which such case may occur, and said commissioners shall notify all interested and examine such obstruction or injury; and, if practicable, lay out a substitute for such highway, turnpike, private way or bridge, and assess damages for the land taken to build such substitute over, in the same way and manner as is now authorized by law in laying out roads; and if such railroad company shall pay for the land so taken, and build at their own expense such substitute within such time and in such manner as said road commissioners shall order and direct, and pay the expenses of the commissioners, and file a written certificate, signed by said road commissioners, that said railroad corporation have so built such substitute, and paid all expenses as aforesaid, in the office of the clerk of the court of common pleas in said county, then no such action on the case shall be sustained. Paraph. Laws, ch. 486.
At.the time the application whs made by the Ashuelot Railroad corporation to lay out the highway in question, the corporation were probably liable to an action for obstructing highways under the provisions of this act of July 3, 1847; and the proceedings by them may have been intended to avoid this liability, and prevent actions that might otherwise be brought. Be that as it may, the proper and regular course for the railroad to have taken was, to have applied to the road commissioners of the county, under the provisions of this act, and had a substitute laid out for the road obstructed; but instead of taking that course they applied to the selectmen, and the road was laid in the manner set forth in the case.
Now the general position of the plaintiff is, that the road was legally laid out as a public highway ; that the selectmen had no power to award that the damages should be paid by *272the railroad company, and hence that part of the return ordering the damages to be thus paid is surplusage and should be rejected, leaving the award to stand in general terms, and the damages to be paid by the town.
This road was laid out by the selectmen, upon the petition of the corporation, and in consequence of the obstruction by the railroad of the public highway. The request was “ to lay out a new highway as a substitute for the one taken by the railroad.” The legislature had granted a charter to the railroad, and had empowered them to obstruct, if necessary, any highway in the course of its track; and had also provided a specific remedy for the evil occasioned by the obstruction, should it arise; and ordinarily specific legislation supersedes general statutes upon the particular subject of its enactment. It is clear that, the selectmen had no power to lay out the road under the act of 1847. The power conferred by that act was given to the road commissioners alone. It is clear, also, that if the act of 1847 superseded the general statute, in regard to the powers of selectmen to lay all roads within the limits of their respective towns, so as to confine this particular class of cases to the jurisdiction of the road commissioners, then no road has been legally laid. It appears to us that there can be but little doubt in regard to the matter; but however this may be,«and however this statute should be construed, we think it plain that the laying out in this instance, if valid at all, must be treated as having been done for the accommodation of the railroad corporation, who had obstructed the old road, who had petitioned for the new one, and who were obliged bylaw to remove the obstruction or furnish a substitute. A corporation is not a person, in the literal sense of the phrase used in the statute, for whose accommodation a road is laid out, but ¡no good reason occurs to us why a corporation may not, ¡as a general tbjng, apply to the selectmen to have a highway laid out for their accommodation as well as an individ*273ual; and why it might not be laid out in the same manner and upon the same conditions.
The road in question is not of the character usually laid for the accommodation of individuals, neither is it of the character contemplated by the general statute to be laid for the accommodation of the public. Indeed, when the general statute was first passed a railway was not in existence. The public were sufficiently accommodated by the highway until the corporation interfered and deprived them of its use. The corporation took the highway for their own accommodation and for their own benefit, and it would be strange indeed if the town could be legally and constitutionally compelled to make a substitute, and pay for the land taken therefor. If the road was legally laid at all, it must be held to have been done for the accommodation of the petitioners. At all events, we have no hesitancy in holding that it was not a highway legally laid out for the accommodation of the public, under the general statute of the State, and that, consequently, the town is not liable to pay the damages for the land taken.
But it is said, in argument, that the town is not in a sitution to deny the existence of the highway; that they should not be permitted to repudiate the acts of their own agents; and that the validity of the laying out is not to be tried in this way.
We have already decided, at this term, in this county, in the case of Gurnsey v. Edwards & a., that where there is no provision of law by which the proceedings of an inferior court, or other tribunal of specified and limited powers, may be re-examined or reviewed, they may be inquired into collaterally, and that the doings of selectmen fall under this class. We also held in that case that the party proposing to take advantage of the illegality, must be in a situation so to do; and we see no reason to depart from either of these grounds in the case before us.
Ordinarily, towns cannot be heard to deny the legality of *274the doings of their own duly elected and qualified agents, upon matters where they are competent to act, for whatever is done by a general agent, within the scope of his authority, binds the principal. But the town have, in this case, done nothing to preclude them from defending against the acts of the selectmen, if those acts are beyond the scope of their powers. The very point of the case is, what have the selectmen done ? What do their acts show ? They have laid out a road upon the petition of the Ashuelot railroad corporation, as a substitute for the highway taken by them, and have awarded that the land damages shall be paid by the company. And the court hold that probably the selectmen had no power to act in the premises; but if they had, the laying out must be regarded as done for the accommodation of the railroad company. There is clearly no principle infringed in permitting the town .to defend upon these grounds. In the one view, it is showing that the selectmen have transcended their powers, and in the other it is simply putting a construction upon their acts!
It appears that the highway was constructed and opened for travel by the corporation soon after the road was laid out; and it cannot be doubted, taking the whole proceedings together, that the selectmen would not have laid the road, had they supposed the town would be obliged to pay the land damages. Counsel state that the corporation will be liable to the town for such sum- as they shall pay; if that be so, it would have been better to have paid it in the first instance, and thereby have saved this litigation. According to the provisions of the case there must be
Judgment for the defendants.