Harris v. Town of Townshend , 56 Vt. 716 ( 1883 )

The opinion of the court was delivered by

Royoe, Ch. J.

An exception was taken upon the trial to the ruling of the court that the notice given to the defendant town was sufficient. The defect complained of was that it did not sufficiently describe the place where the accident happened. It was ‘conceded the question was one for the court to determine. Prom what appears in the exceptions, we think the ruling was correct. The notice pointed as plainly and directly to the place where the accident happened, as was reasonably practicable, having regard to its character and surroundings; and this is all that has ever been required. Reed v. Calais, 48 Vt. 7; Bean v. Concord, 48. Vt. 30. The question made by the motion to dismiss, is one not free from doubt, and upon which there does not seem to be any express authority in this State. The effect of repealing statutes upon pre-existing causes of action has been frequently considered by the courts of England and this country; and certain -rules have become well established that are applicable to certain classes of actions, — such as the right given by statute to sue for and recover penalties, and the right •of tlie State to prosecute for the commission of statutable offences. The unconditional repeal of the statute, which conferred the right to sue for the penalty, constitutes a legal bar to the prosecution of any such suit; and a like repeal of the statute constituting an offense, suspends the right of the State to prosecute for its commission. Here, it is claimed that the plaintiff had a vested right to compensation, and hence the legislature had no constitutional power to divest him of that right. What constitutes a vested right has always been a vexed question, and no definition applicable to all claims of that character has been promul.gated ; and it is probably impossible to give one that would be. The question has often been considered in construing laws affecting the remedy for the enforcement of rights. Where the right is admitted, it is familiar law, that the method and mode of its enforcement may be modified and changed by legislative ■enactment; but the party having the right cannot, be constitutionally deprived of all remedy for its enforcement. We do not find it necessary in this case to decide whether the plaintiff had any such vested rjght, as the statute, passed in 1880,, would he inoperative to deprive him of or not. The right of the plaintiff to maintain the action is preserved by Sec. 28 of chap. I., R. L. That provides that the repeal of an act shall not affect a right accruing, accrued, acquired, or established, before the time when the repeal takes effect. Immediately upon the happening of the accident, the plaintiff acquired the right to demand compensation of the town for the damage sustained ; his ability to enforce that right was dependent upon his ability to prove that he had given the notice required to the town, that the highway was one that the town was under obligation to keep and maintain in repair, that it was out of repair, and that his own neghgence or want of care, did not contribute to the happening ■of the accident.

His right of action had accrued. His right to recover was dependent upon the proof to be made. He had no perfected right to compensation, and could have none, until the questions, upon which the liability of the defendant town depended, should be legally determined. His right was not' an inchoate one in the sense in which the word is used in some of the cases, where-it has been held that an inchoate right was lost by the repeal of a statute. His right was as perfect as any can be, where the question of its enforcement is open to contention and litigation. Where a corporation appropriates the property of a citizen under a statute conferring the authority, .the repeal of the statute giving the authority does not affect the right to compensation for the property so appropriated. Here the plaintiff suffers damage to his property, in consequence of the non-feasance of the defendant town. Hpon principle, it would seem that the right of a party to compensation, where he has suffered in property or person, should not be affected by the repeal of the statute imposing the liability, any more than it does where the party had been damnified by some positive act of the corporation. The language of the above section, we think, comprehends rights of this character ; and it is evident to us that the legislature did not intend, that claims for damages, resulting from the negligence of' towns, should be barred by the repeal of the law which prescribes, their duty and their liability, if they neglected to perform it.

The judgment is affirmed.