concurring.
I concur in the decision in this case upon the ground that by filing his claim for damages and appealing from the award of the county board the plaintiff has voluntarily placed himself in a position which deprives him of the right to the equitable remedy of injunction. He cannot demand damages for the location of the road and. at the same time deny the jurisdiction of the board in establishing it. He is not entitled to both remedies.
I agree that the filing of the petition, although defective, conferred jurisdiction upon the board. I also agree with the holding that a proper report by the com*829missioner to view the proposed road would have cured the defect. But it appears that the commissioner failed to perform his duty in that regard, and it is still in doubt as to where the change in direction “one mile and nearly a half” north of the initial point would occur. It may be at the quarter east and west line in section 21, or it may not. Other descriptions appear to be in compliance with the law. The county board should have rejected the report of the commissioner and caused him or some other person to establish the point of change in direction by proper measurements, or other apt description. This may yet be done, and the exact location of the road made a matter of record in order that future complications may be obviated. If this has not been done, the board should see that it is accomplished without further delay.