I cannot distinguish this case from State v. Mellette, 106 S.C. 224;91 S.E., 4, which in my opinion is controlling in favor of the appellant. In that case the defendant was indicted for obstructing a neighborhood road by removing a bridge which connected the neighborhood road with a public highway, exactly the situation which is presented in the case at bar except that in the one case the drainage ditch on the side of and parallel with the highway was spanned by a bridge, and in the other a galvanized iron pipe constituted a culvert, which was covered with earth and afforded passage from the terminus of the neighborhood road to the highway, or vice versa.
In the Mellette Case the question was whether or not the bridge was a part of the public highway, under the rule *Page 338 declared in State v. Harden, 11 S.C. 360, that Criminal Code, 1922, § 601, relating to the obstruction of highways, applies only to highways under the jurisdiction of the County or state authorities, such as are laid out or improved at the public expense, and that it is not applicable to neighborhood roads. The Court held:
"The contention that, as the bridge connected the neighborhood road with the public highway was built by the County authorities, its removal brought the case within the statute as an obstruction of the public highway, is untenable."
Under this construction, if the defendant had removed a culvert, used for exactly the same purpose as the bridge was, he could not have been convicted of obstructing a public highway.
In the case at bar the question is whether or not the culvert was a part of the public highway, under the rule declared in Hill v. Laurens County, 34 S.C. 141;13 S.E., 318, that Section 2948, Vol. 3, Code of 1922, relating to damage resulting from defective highways, applies only to highways under the jurisdiction of the County authorities, such as are laid out or improved at the public expense, and that it is not applicable to neighborhood roads. Under the construction placed by the Court upon practically identical conditions, it must be concluded that the culvert was not a part of the highway.
The case of Wallace v. Orangeburg, 87 S.C. 359;69 S.E., 664, is meagerly reported. An examination of the record in that case discloses the fact that it is parallel with the Mellette Case, so far as the bridge is concerned; that is, it presented a case of a neighborhood road debouching into a highway over a bridge across a drain. It was held there that the County was not liable.
I know of no authority which would justify the County authorities in denying to the patrons of a neighborhood road, or even of a private path, the right to connect with a *Page 339 public highway wherever they saw fit, provided such connection did not interfere with the public use. If they are not authorized to remove or prevent he installation of the necessary connections for the prosecution of legitimate business, the County should not be held liable for an injury caused by the negligent location, construction, operation, or maintenance of such connections. The fact is that the construction of the culvert was made necessary by the exercise of a right which the County could not prohibit; and it seems only fair that those in the exercise of that right should alone be charged with the duty of maintaining it. The culvert was not placed by the County nor was it used in connection with the use of the highway or maintained by the County. The statute was intended for the protection of those using the highways as such (see authorities cited in Faust v. Richland, 117 S.C. at page 269; 109 S.E., 151); it certainly was not intended for the protection of one leaving the highway by means not provided by or under the control of the County.
I do not suppose that it would be contended that the County would be liable to one using a bridge placed there by himself, over a drain ditch, connecting with a private road or path to his dwelling; and, if not, why make a distinction in favor of the patron of a neighborhood road?