This is an action of tort, for digging a ditch or watercourse in the highway in front of the dwelling-house and barn of 'the plaintiff, thereby rendering them more difficult of access. The defendant answered that, in making the watercourse, he was acting under the direction of the surveyors of highways in repairing the way, and that all acts done by him were done with their authority and approval.
The selectmen of Egremont for the year 1854 were also elected surveyors.
The plaintiff offered evidence of the doing of the acts alleged; and the defendant, that in so doing he had the direction and approbation of the surveyors.
1. The plaintiff then offered evidence to show that, in making the ditch," the surveyors and the defendant, and especially the latter, acted wantonly and for the purpose of injuring the plaintiff, and that the acts done were not necessary for the repair of the way, as required by law. To the admission of this evidence the defendant objected; but the court, for the purposes of the trial, admitted it. To this admission of evidence the first of the defendant’s exceptions was taken. We think the evidence should have been excluded.
*413The question of the necessity of the repairs must be determined by the proper officers of the town, and their judgment and action upon the subject cannot be revised by the jury in an action at law. If the construction of the watercourse was with the approbation of the selectmen, legally given, it cannot be left to the jury to say whether the making of such watercourse was necessary for the highway.
Nor was it competent to show that the thing done was done for the purpose of injuring the plaintiff. An act done within the scope of the officer’s authority does not become illegal by reason of the motive which may have influenced his mind in doing it. To the extent to which the estate of the plaintiff is injured by any act done in the repair of the way he has a full compensation in damages. Rev. Sts. c. 25, § 6. And the motives with which the act is done by the surveyor or the selectmen do not change the character of the watercourse, or make it of more or less injury to the estate.
2. The defendant relying upon the testimony of the selectmen, who acted also as surveyors, to show that the work was done under their authority and in the manner directed by them, it was certainly competent for the plaintiff to prove that one of the witnesses so testifying at the trial had, on other occasions, said that he had not directed the work to be done as it was done. It was the common mode of impairing the weight of a witness’s testimony by showing he had made in the country statements conflicting with those made upon the stand.
The cross-examination of the witness was not, under our practice, necessary to the introduction of testimony of conflicting statements made elsewhere by the witness, nor did the cross-examination affect the right of so doing. The subject-matter was not collateral, but obviously material to the issue.
3. The evidence as to the repairs made in other parts of the highway should have been excluded, for the reason before stated, that the necessity or propriety of the repairs, if made by the proper officers of the town, and within the scope of their authority, were not to be revised by the jury. It is difficult to *414see any posture of the cause in which such evidence would be material.
4. The opinion expressed as to the evidence admitted in the cause indicates the exception to which, we think, the final rulings of the presiding judge are justly liable. The true inquiry was, whether the defendant had legal authority to do what he did in the highway. If he had such authority, and acted within the scope of it, he is not a trespasser because bis motives or purposes with respect to the plaintiff were unkind or malicious. For an act lawfully done in the repair of the highway, the statute has given the plaintiff a remedy, and that a sole and exclusive one. If the defendant exceeded his authority, he may be liable in tort; but upon the bill of exceptions we do not see that this question was raised.
A point was made at the argument, which does not appear to have been made at the trial, to wit, that the acts of the defendant were without authority because, conceding that he acted under the direction of the selectmen who had been chosen surveyors, the selectmen could not have been legally chosen the surveyors of highways, the offices being incompatible. Rev. Sts. c. 25, §§ 5, 7,14, 19. Another suggestion may be of moment; it is, that the case does not disclose that the approbation of the selectmen was first obtained in writing. Rev. Sts. c. 25, § 5. These may present important questions upon any future trial; but we do not feel called upon to decide them in the present posture of the cause. Exceptions sustained.