Fleming v. . Congleton

Allen, J. The road law of Pitt County (Public Laws 1905, ch. 114,. sec. 8) provides that where any person across whose land a road is located claims damages and files his petition therefor the board of commissioners shall order a jury of three freeholders to be summoned, who, after notice to the owner, shall assess the damages, and gives the right of appeal to the owner of the land to the Superior Court, where the petition is heard before a jury de novo; but this statutory remedy is not exclusive and does not prevent the owner from resorting to the common- *188 law remedy to recover damages by action in tte Superior Court. Mason v. Durham, 175 N. C., 641, approved in Keener v. Asheville, ante, 1. It follows therefore that the plaintiffs have stated a cause of action in their complaint within the jurisdiction of the court, and that they have the right to pursue their remedy by action unless prevented by filing their petition before the board of commissioners, the defendant contending that having two remedies and having elected to ask for the assessment of damages under one they cannot demand redress under the other. The doctrine of the election of remedies is “generally regarded as being an application of the law of estoppel, upon the theory that a party cannot, in the assertion or prosecution of his rights, occupy inconsistent positions” (9 R. C. L., 957), and it “applies only where there are two or more remedies, all of which exist at the time of election and which are alternative and inconsistent with each other, and not cumulative, so that after the proper choice of one the other or others are no longer available. This is upon the theory that of several inconsistent remedies the pursuit of one necessarily involves or implies the negation of the others.” 9 R. C. L., 958. This is the accepted doctrine in this Court. Machine Co. v. Owings, 140 N. C., 504; Pritchard v. Williams, 175 N. C., 322. In the first of these cases Justice Uolce states the principle as follows: “As regards what have been termed consistent remedies, the suitor may, without let or hindrance from any rule of law, use one or all in a given case. He may select and adopt one as better adapted than the others to work out his purpose, but his choice is not compulsory or final, and if not satisfied with the result of that he may commence and carry through the prosecution of another. . . . In 3 Words and Phrases Judicially Defined, p. 2338, it is said: 'The whole doctrine of election is based on the theory that there are inconsistent rights or remedies of which a party may avail himself, and a choice of oiie is held to be an election not to pursue the other. The principle does not apply to coexisting and consistent remedies.’ These statements of the doctrine are supported by well-considered decisions and are very generally accepted as correct. Whittier v. Collins, 15 R. I., 90; Bacon v. Moody, 117 Ga., 207; Austen v. Decker, 109 Iowa, 109; Black v. Miller, 75 Mich., 323.” This is quoted with approval in the second case, and the Court adds, “It is only when two rights are inconsistent that the party is put to his election, and that the exercise of one or the failure to do so bars the other.” The Machine Co. case is also reported in 6 A. & E. Ann. Cases, 212, and the editor says in the note appended, “The rule stated in the reported case that the doctrine of election of remedies applies only when the remedies invoked are inconsistent, and that when the remedies are consistent all may be pursued, finds affirmance in numerous decisions,” and he cites *189 decisions from tbe highest courts of nineteen States and from the Supreme Court of the United States in support of the text. Applying this principle, it is clear that filing the petition before the commissioners, conceding it to have been filed under the statute, which the plaintiffs deny, and which was withdrawn before the present action was commenced without objection by the defendant is no bar to the present action because the two remedies are consistent, both having the same purpose in view — the recovery of damages for an entry upon the-land of the plaintiffs, based on substantially the same facts. There is therefore no error in the judgment appealed from. No error.