Britt v. . Benton

Smith, C. J. The plaintiff’s exceptions to the ruling of Ihe Court below, and which are relied on in the argument. Ihere, will be noticed in their proper order:— 1. The plaintiff excepts, for that, the processioner did not. •concur in and sign the report of the freeholders, and it does not appear he was in consultation with them. The report states that on the 11th of October, 1877, the freeholders after being duly sworn “ appeared with the processioner on the--disputed line,” and then sets out their action in the premises, in detail. It thus appears that the processioner was present, participating with the freeholders in what they did, and as we must assume, performing his legal duties in regard thereto. It is not necessary he should sign the report. The act requires the appointment “ of five respectable freeholders who shall appear with the processioner on the line or-lines in dispute,” and that they, the freeholders, shall procession the same and make report of their proceedings.. Bat. Rev. ch. 91, § 6, amended by the act of 1874-’75, ch~ 40, § 1. 2. The next exception is that four only of the five freeholders appointed acted in processioning the land and determining the disputed lines. Whatever force there might be-in this objection in the absence of any statutory provision,, it is remedied by the act which declares that “all words, purporting to give a joint authority to three or more public officers or other pet sons shall be construed as giving such au *179 thority to a majority of such officers or other persons'’ Bat. Rev. ch. 108, § 2. _ 3. The last exception is that issues, of fact regarding boundary having arisen and be*n returned to the clerk, he should have transmitted them to the Superior Court for trial before a jury there. . It is true, the right of trial before a jury in all controversies at law respecting property is secured in the bill of rights annexed to the , constitution of. 1776, and also in the constitution of 1868, and in our present constitution. The statute for processioning land substantially in its present form has been in operation since-1723, and numerous cases arising under it has been before the Court, and in some of them unfriendly criticisms have-been indulged in respect to its operation and effect upon rights of property; but in none of them does it appear that-objection to its validity under the constitution was raised. It can scarcely be supposed that this point would have escaped the vigilance of counsel and the Court; and the enforcement of the law must be deemed a concession of its compatibility with the constitution. We should be reluctant now by questioning its validity to disturb this long and continued acquiescence. Indeed, this method of procedure may be regarded as a substitute for a jury trial, possessing the advantages of a personal inspection of the land and its-boundary marks, and the presence before freeholders of the different objects to which the testimony of witnesses is directed. These ceremonies are wanting in a trial before the Court. There is the further protection afforded to rights of property in the requirement of two successive processionings. to ascertain and determine them. But it suffices for our present purpose to say that the plaintiff, who alone complains, has voluntarily sought this-statutory tribunal and submitted his claims to its determination. He has waived his right to a jury trial and can. not be permitted to repudiate the jurisdiction ho has him *180 self invoked to decide bis controversy with an adjoining proprietor when the result is adverse to himself. There is an apt time and mode in which rights must be asserted, and when one must make his election. In our opinion he has waived his right, and must abide by his election and its consequences. Atkinson v. Whitehead, 77 N. C. 418. We therefore overrule the exceptions and affirm the judgment. Let this be certified. No error. Per Curiam. Judgment affirmed.