State v. Michaud
| Decision Date | 18 December 1953 |
| Citation | 100 A.2d 899,98 N.H. 356 |
| Parties | STATE v. MICHAUD. |
| Court | New Hampshire Supreme Court |
Louis C. Wyman, Atty. Gen., George F. Nelson, Asst. Atty. Gen., and Lindsey R. Brigham, County Sol., Exeter, for the State.
John B. Ford, Salem Depot, for respondent.
Under the facts in this case the only method by which the State could sustain the burden incumbent on it, Dow v. Latham, 80 N.H. 492, 120 A. 258; Summerfield v. Wetherell, 82 N.H. 513, 135 A. 147, to show that the lane involved was a public 'way' under the motor vehicle statute, R.L. c. 115, § 1, par. XXXIV, was for it to prove that it was a highway 'laid out in the mode prescribed therefor by statute'. R.L. c. 90, Laws 1945, c. 188, Pt. 1, § 1. To that end the State introduced evidence that a commission appointed by the Governor and Council to do so, Id., Pt. 4, § 2, had made and filed with the Secretary of State a return of the laying out or alteration of Route 28 which covered the lane in question. Id., § 11.
The issue before us for decision is whether the fact that a copy of such return was not filed with the clerk of the town of Salem as required by said section 11 is fatal to the proof of a layout of said lane 'in the mode prescribed therefor by statute'. § 1, supra.
The making of the return is not a merely ministerial act but a substantial and essential part of the duties of the authority laying out the highway. Brown's Petition, 51 N.H. 367, 368.
The respondent correctly argues that it has been held by decision of our court at least since 1820, Hardy v. Houston, 2 N.H 309, that returns of highway layouts were to be filed with the clerk of the town involved. And up to 1891 town clerks were the only officials with whom such returns were filed. However P.S. c. 70, § 5, provided that in layouts which came under the authority of the Governor and Council the return was to be filed with the Secretary of State and a copy filed with the clerk of the town involved, and that was the law when Laws 1945, c. 188 was enacted. R.L. c. 93, § 5.
Section 11 of Part 4 of R.L., c. 90, Laws 1945, c. 188, provides as follows: 'The commission shall make a return of the highway or any alteration by them laid out * * * and cause the same to be filed with the secretary of state, and file a copy of such return with the clerk of the city or town in which such highway or alteration is laid out.' (Emphasis supplied.)
It is our opinion that the return which 'is not a mere clerical formality, subsequent to the laying out' but is 'in effect...
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Edgcomb Steel of New England, Inc. v. State
...return of the layout and assessment which is required by RSA 233:11 is essential to the legal laying out of the highway. State v. Michaud, 98 N.H. 356, 100 A.2d 899. 'In effect, the return is the laying out.' In re Brown's Petition, 51 N.H. 367, 368. 'The words 'laying out' and 'taking,' in......
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State v. Gallagher
...the statutory definition. Dow v. Latham, 80 N.H. 492, 120 A. 258; Summerfield v. Wetherell, 82 N.H. 513, 135 A. 147; State v. Michaud, 98 N.H. 356, 100 A.2d 899. It is true that most accidents occur on highways and it is also true, as the defendant argues, that most motor vehicle offenses a......
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...or parking area (cf. Rogers v. Concord, 104 N.H. 47, 178 A.2d 509) and that it has not been in use for twenty years. State v. Michaud, 98 N.H. 356, 100 A.2d 899; State v. Duranleau, 99 N.H. 30, 104 A.2d 519, 45 A.L.R.2d 1166. The defendant asserts that it is therefore not a public highway, ......
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...on the State to show that violations of the motor vehicle law occur on a public 'way.' R.L. c. 115, § 1, subd. XXXIV; State v. Michaud, 98 N.H. 356, 100 A.2d 899, 900; R.L. c. 90, as amended by Laws 1945, c. 188, Pt. 1, § 1. This burden incumbent on the State is customarily satisfied by dir......