Wilde, J.
This is an action of trespass quare clausum, in which the defendant undertakes to justify the alleged trespasses as surveyor of highways in the town of Chester. At the trial, the plaintiff contended that the trespasses were committed extra viam ; but on this point the jury returned a verdict in favor of the defendant. The defendant also, on his part, objected that the plaintiff was not the owner of the land over which the road was laid out, at the place where the alleged trespass was committed ; but this objection has been since waived. The case was submitted to the jury on the evidence reported, who returned a verdict in favor of the plaintiff, and assessed damages in several sums for three distinct trespasses. As to two of these trespasses, we are of opinion that this action cannot be maintained. The charge against the defendant was, that he had, within the limits of the highway, and without the approbation of the selectmen.of the town of Chester first being had in writing, caused two watercourses, occasioned by the wash of the highway, to be so conveyed by the side of the highway as to incommode the plaintiff in the use of his barn, and thereby [604]*604obstructing him also in the prosecution of his business. This, by the Rev. Sts. c. 25, § 5, is expressly prohibited ; but the plaintiff’s only remedy is that given by the statute. By § 5, lie may complain to the selectmen, who are authorized to alter the said watercourses ; and by § 6, he is entitled to have compensation for any damages he has sustained in his property, to be determined by the selectmen ; and if he should be aggrieved by such determination of the selectmen, he might have his damages ascertained by a jury. But for this statute, the defendant would have had a right, by virtue of his office of surveyor, to make any repairs and alterations in the highway, which the public convenience required, without the approbation of the selectmen ; and if the plaintiff were incommoded, or obstructed in his business thereby, the defendant would not be responsible for damages. And for the violation of the prohibition in the statute, the plaintiff is only entitled to the statute remedy. Callender v. Marsh, 1 Pick. 418. When a statute, that creates a new offence, gives a penalty and directs how it shall be recovered, the offence cannot be punished in any other way than that directed by the statute. Bac. Ab. Statute, K. Wiley v. Yale, 1 Met. 554. The same principle applies to an action for the recovery of damages, where a party has been injured by an act prohibited by statute, but which, before the statute, would have been lawful. 1 Chit. Pl. (6th Amer. ed.) 127, 128, 164.
As to the remaining trespass, the question is, whether the instructions to the jury were correct. It appears by the evidence, that one John Ladd, being in the defendant’s service, cut and felled on the plaintiff’s land, extra viam, certain trees standing within the limits of the highway ; and that the defendant suffered them to remain there for several days, to the injury of the plaintiff’s grass. On this evidence, the jury were thus instructed : [The instructions were here stated at large, as before at page 601.]
It is objected that Ladd, being employed by the plaintiff to work on the road, under the direction of the defendant, was the servant of the plaintiff, and that the defendant is not responsible for h;s acts. But we think it very clear, that while Ladd was [605]*605at work on the highway, under the control of the defendant, he must be considered as the servant of the defendant; and that it is immaterial whether he was employed by the plaintiff to work out his highway tax, or by any other person.
Another exception to the charge of the presiding judge is, that the defendant’s assent to the trespass does not make him lia ble, as the same was not committed for his benefit. In support of this objection, the defendant’s counsel relies on the doctrine as laid down in Bac. Ab. Trespass, G. 1, where it is said that “ if J. S. agree to a trespass which has been committed by J. N. for his benefit, this action lies against J. S. although it was not done in obedience to his command, or at his request.” So in Com. Dig. Trespass, C. 1, it is said, that “trespass lies against him who afterwards assents to a trespass done for his use or benefit, though not privy at the time of doing it.” But “ if he assents to the act of his servant in seizing goods, he will be a trespasser for misusing of the goods, in seizure, though not privy to the misusage.” And so it was ruled in Gibson’s case, Lane, 90. In that case, it appeared that two or three strangers, affirming themselves to be servants of Gibson, seized the plaintiff’s goods; and it was decided, “if they, as servants tc Gibson, without his precedent appointment, did seize the plaintiff’s goods, and the said Gibson approved them to be seized, although his servants, without his consent, abuse the goods, yet Gibson shall be trespasser ab initio.” We find nothing in the instructions to the jury inconsistent with these principles ; on the contrary, they are, we think, fully supported by Gibson’s case.
There is a distinction between the assent of a master to a trespass committed by his servant, and to that committed by a stranger. And there is also a distinction between the case of a party, who is present assenting to a trespass while another is committing it, and the case where the assent is given subse quently. Keeping these distinctions in view, we are of opinion that the charge to the jury was perfectly correct. The trespass complained of was a continuing trespass, until the trees were removed. And it was the duty of the defendant to cause them to be removed immediately. As he neglected to do this, he mus; [606]*606be considered as authorizing the continuance of the trees on the plaintiff’s land, and so was a trespasser ab initio.
We are of opinion, therefore, that the defendant is clearly liable in this action. It has been objected that case, and not trespass, lies against the master for an act done by his servant And this is generally true. But not so where the act is done by the command of the master, or when he is present consenting to the act, or even afterwards ratifying it, by approving ánd assenting to the same.
In the case of Chandler v. Broughton, 1 Crompt. & Mees. 29, it was proved that the defendant was sitting by his servant, who was driving him in a gig, and the horse ran away, and an immediate injury was done to the plaintiff’s property ; and it was held that the action was well brought in trespass, because the act of the servant is the act of the master ; and “ the reason is,” as Bayley, B. remarks, “ that the master has the immediate control over the servant.” We think this case was determined on a sound principle of law, and it is decisive in the case at bar, both as to the liability of the defendant and the form of the action.
The verdict is to be altered conformably to the opinion of the court, and judgment thereon is to be entered for the plaintiff
After the foregoing opinion was pronounced, the defendant moved for costs upon the second and third counts in his declaration, because the verdict, as amended by the court, was in his favor on those counts. Upon this motion, the opinion of the court was given by
Dewey, J.
The provisions of the Rev. Sts. c.
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Wilde, J.
This is an action of trespass quare clausum, in which the defendant undertakes to justify the alleged trespasses as surveyor of highways in the town of Chester. At the trial, the plaintiff contended that the trespasses were committed extra viam ; but on this point the jury returned a verdict in favor of the defendant. The defendant also, on his part, objected that the plaintiff was not the owner of the land over which the road was laid out, at the place where the alleged trespass was committed ; but this objection has been since waived. The case was submitted to the jury on the evidence reported, who returned a verdict in favor of the plaintiff, and assessed damages in several sums for three distinct trespasses. As to two of these trespasses, we are of opinion that this action cannot be maintained. The charge against the defendant was, that he had, within the limits of the highway, and without the approbation of the selectmen.of the town of Chester first being had in writing, caused two watercourses, occasioned by the wash of the highway, to be so conveyed by the side of the highway as to incommode the plaintiff in the use of his barn, and thereby [604]*604obstructing him also in the prosecution of his business. This, by the Rev. Sts. c. 25, § 5, is expressly prohibited ; but the plaintiff’s only remedy is that given by the statute. By § 5, lie may complain to the selectmen, who are authorized to alter the said watercourses ; and by § 6, he is entitled to have compensation for any damages he has sustained in his property, to be determined by the selectmen ; and if he should be aggrieved by such determination of the selectmen, he might have his damages ascertained by a jury. But for this statute, the defendant would have had a right, by virtue of his office of surveyor, to make any repairs and alterations in the highway, which the public convenience required, without the approbation of the selectmen ; and if the plaintiff were incommoded, or obstructed in his business thereby, the defendant would not be responsible for damages. And for the violation of the prohibition in the statute, the plaintiff is only entitled to the statute remedy. Callender v. Marsh, 1 Pick. 418. When a statute, that creates a new offence, gives a penalty and directs how it shall be recovered, the offence cannot be punished in any other way than that directed by the statute. Bac. Ab. Statute, K. Wiley v. Yale, 1 Met. 554. The same principle applies to an action for the recovery of damages, where a party has been injured by an act prohibited by statute, but which, before the statute, would have been lawful. 1 Chit. Pl. (6th Amer. ed.) 127, 128, 164.
As to the remaining trespass, the question is, whether the instructions to the jury were correct. It appears by the evidence, that one John Ladd, being in the defendant’s service, cut and felled on the plaintiff’s land, extra viam, certain trees standing within the limits of the highway ; and that the defendant suffered them to remain there for several days, to the injury of the plaintiff’s grass. On this evidence, the jury were thus instructed : [The instructions were here stated at large, as before at page 601.]
It is objected that Ladd, being employed by the plaintiff to work on the road, under the direction of the defendant, was the servant of the plaintiff, and that the defendant is not responsible for h;s acts. But we think it very clear, that while Ladd was [605]*605at work on the highway, under the control of the defendant, he must be considered as the servant of the defendant; and that it is immaterial whether he was employed by the plaintiff to work out his highway tax, or by any other person.
Another exception to the charge of the presiding judge is, that the defendant’s assent to the trespass does not make him lia ble, as the same was not committed for his benefit. In support of this objection, the defendant’s counsel relies on the doctrine as laid down in Bac. Ab. Trespass, G. 1, where it is said that “ if J. S. agree to a trespass which has been committed by J. N. for his benefit, this action lies against J. S. although it was not done in obedience to his command, or at his request.” So in Com. Dig. Trespass, C. 1, it is said, that “trespass lies against him who afterwards assents to a trespass done for his use or benefit, though not privy at the time of doing it.” But “ if he assents to the act of his servant in seizing goods, he will be a trespasser for misusing of the goods, in seizure, though not privy to the misusage.” And so it was ruled in Gibson’s case, Lane, 90. In that case, it appeared that two or three strangers, affirming themselves to be servants of Gibson, seized the plaintiff’s goods; and it was decided, “if they, as servants tc Gibson, without his precedent appointment, did seize the plaintiff’s goods, and the said Gibson approved them to be seized, although his servants, without his consent, abuse the goods, yet Gibson shall be trespasser ab initio.” We find nothing in the instructions to the jury inconsistent with these principles ; on the contrary, they are, we think, fully supported by Gibson’s case.
There is a distinction between the assent of a master to a trespass committed by his servant, and to that committed by a stranger. And there is also a distinction between the case of a party, who is present assenting to a trespass while another is committing it, and the case where the assent is given subse quently. Keeping these distinctions in view, we are of opinion that the charge to the jury was perfectly correct. The trespass complained of was a continuing trespass, until the trees were removed. And it was the duty of the defendant to cause them to be removed immediately. As he neglected to do this, he mus; [606]*606be considered as authorizing the continuance of the trees on the plaintiff’s land, and so was a trespasser ab initio.
We are of opinion, therefore, that the defendant is clearly liable in this action. It has been objected that case, and not trespass, lies against the master for an act done by his servant And this is generally true. But not so where the act is done by the command of the master, or when he is present consenting to the act, or even afterwards ratifying it, by approving ánd assenting to the same.
In the case of Chandler v. Broughton, 1 Crompt. & Mees. 29, it was proved that the defendant was sitting by his servant, who was driving him in a gig, and the horse ran away, and an immediate injury was done to the plaintiff’s property ; and it was held that the action was well brought in trespass, because the act of the servant is the act of the master ; and “ the reason is,” as Bayley, B. remarks, “ that the master has the immediate control over the servant.” We think this case was determined on a sound principle of law, and it is decisive in the case at bar, both as to the liability of the defendant and the form of the action.
The verdict is to be altered conformably to the opinion of the court, and judgment thereon is to be entered for the plaintiff
After the foregoing opinion was pronounced, the defendant moved for costs upon the second and third counts in his declaration, because the verdict, as amended by the court, was in his favor on those counts. Upon this motion, the opinion of the court was given by
Dewey, J.
The provisions of the Rev. Sts. c. 121, § 16, which give costs to the defendant as well as to the plaintiff in cases where a verdict is rendered, upon one or more of the counts, for the plaintiff, and for the defendant upon one or more counts, restrict the right of the defendant to cases C£ where there are two or more counts on several and distinct causes of action.” It is not, therefore, sufficient to entitle the defendant to recover his costs, that there were several different counts in the declaration, and that he has prevailed in one or [607]*607more of them. If this would entitle him to his costs, then in all cases, where the demand arose upon a single contract, and the plaintiff had, as he well may do, set it forth in various counts, to meet any technical objections, or any questions as to the true construction of the contract — as the plaintiff had really but one cause of action, the defendant might insist upon a ver-diet in his favor upon all the counts but one, and thus would establish a claim to costs against the plaintiff. Such, however, was not the purpose of the statute. It applies solely to cases where there are different counts upon distinct causes of action. The court must therefore look into the declaration and the evidence offered in support of the various counts, and see clearly that the counts were designed to embrace different causes of action, before they grant the present motion.
The first count in this declaration is trespass quare clausum fregit, and upon the same close that is described in the other counts ; and it alleges the trespasses to have been committed on the first of January 1838, and on divers days and times between that day and the day of the date of the writ, and thus not only includes, but also extends beyond, the time when the trespasses, set forth in the second and third counts, are alleged to have been committed. It is true that in the second count the particular act complained of as constituting the trespass, is more particularly set forth ; but it is equally true, that all the evidence offered, or that could legally have been offered, in support of all the counts, would have been properly admissible under the first count. This being so, the causes of action are not distinct, and the defendant is not entitled to recover costs.
In the case of Sayles v. Briggs, 1 Met. 291, this rule was applied, and a construction given to the statute, which seems to settle the question raised in the present case.
Motion overruled