Cook v. Kendall

13 Minn. 324 | Minn. | 1868

Wilson, Oh. J.

By the Court This is an appeal from an order modifying an injunction.

The only ground for the appeal urged is that the action is barred by the statute of limitations, and the case of Eastman vs. St. Anthony Falls Water Power Co., 12 Minn., 137; and Sec. 17, chap. 31, Gen. Stat., are relied on in support of the appellants’ views. The decision referred to only holds that Seo. 12, Chap. 60, Comp. Stat., limited the time for commencing an action of this kind to ten years after the cause of action arose. But that section was repealed'in 1866, before this plaintiff had a right of action, and before the statute had barred an action to abate the nuisance here complained of. It therefore does not apply to this case. The legislature has not the power to deny a remedy, or cut off an existing right of action ; but subject to this limitation its power to enlarge or lessen the time — at least before the statute has barred a right of action — or to establish a limitation can not be questioned. A statute of limitation, affects only the remedy, and therefore every case must be governed by the law in force when suit is brought. Holcomb vs. Tracy, 2 Minn., 345 ; Burwell vs. Tullis, 12 Minn., 577; Penniman vs. Ritch, 3 Met., 218.

Section 17, chap. 31, Gen. Stat., is inapplicable. It relates only to an action for damages, and cannot by construction be extended to an action to abate or enjoin a nuisance. Bedel vs. Janney, 4 Gilman, 193; Hazel vs. Shelby, 11 Ill., 9.

Order affirmed.