| OCR Text |
446 Missouri these waters, it now appears that this question is settled.60 The Missouri Court has adopted, with some modification, the "common enemy" doctrine. Under this rule, the surface water is treated as a common enemy which each landowner may repel or fend off as he sees fit, without regard to the consequences to other landowners. Adjoin- ing landowners, however, have the right to protect themselves as best they can.61 The rule is qualified to the extent that a landowner may not collect the surface water and cast it in a concentrated volume upon the adjoining land.62 But a landowner, as an incident to the rea- sonable use and development of his land, may drain it, even though this increases and accelerates the flow of the surface water upon lands of another-if he does not act negligently and does not in- crease the natural capacity of the drain way to the injury of the adjoining property.63 A private landowner is granted the right by statute to drain his land into any natural watercourse, depression, or other outlet in order to protect his lands for sanitary or agri- cultural purposes, and he is entitled to use eminent domain proceed- ings should it become necessary to construct a drain across another's land in order to reach a natural watercourse.64 A lower landowner may, in the protection of his land, construct barriers, embankments, or otherwise alter the surface of his land to prevent the surface water from higher property coming onto his lands.65 Flood waters escaping from a watercourse are considered to be the same as diffused surface waters, and so the common enemy doctrine applies, and dikes or embankments may be constructed to protect a landowner's premises and to repel floodwaters-so long as there is no interference with the channel itself.66 Of course, flood water cannot be collected and discharged in a body upon a lower landowner.67 A good deal of litigation has taken place in Missouri relating to the rights and duties of railroads in the construction of rail- road fills. A statute requires a railroad to provide openings and ditches through embankments to connect with ditches, drains, and watercourses already in existence to afford drainage and prevent obstruction of surface water.68 However, where there are no ditches or watercourses already in existence, there is no liability for the construction of the embankment which blocks the drainage of surface water and inundates the upper land.69 60 Snodgress and Davis, The Law of Surface Water in Missouri, 24 Missouri Law Review 137,281 (1959). «• Abbott v. Kansas City, St. J. & G.B.R.R., 83 Mo. 271 (1884) ; Haferkamp v. City of Bock Hill, 316 S.W. 2d 620 (1958). 62 Blydenburgh v. Amelung, 309 S.W. 2d 150 (K.C. Ct. App. 1958) ; Behm v. King Louie's Bowl, Inc., 350 S.W. 2d 285 (K.C. Ct. App. 1961). ^Haferkamp v. City of Bock Hill, 316 S.W. 2d 620 (1958) ; Reutner v. Vouga, 367 S.W. 2d 34 (St. L. Ct. App. 1963) ; Peters v. Shull, 379 S.W. 2d 837 (K.C. Ct. App. 1964) ; Thompson v. Chicago, M. & St. P. By. Co., 137 Mo. App. 62, 119 S.W. 509 (1969) ; Skaggs v City of Cape Girardeau, 472 S.W. 2d 870 (St. L. Ct. App. 1971). u Missouri Rev. Stat. sees. 244.010 to 244.130. 65 Walther v. City of Cape Girardeau, 166 Mo. App. 467, 149 S.W. 36 (1912) ; Mehonray v. Foster, 132 Mo. App. 229, 111 S.W. 882 (1908). 68 Goll v. Chicago & A. Ry., 271 Mo. 655, 197 S.W. 244 (1917) ; Anderson v. Inter- River Drainage & Levee Dist., 309 Mo. 189, 274 S.W. 448 (1925). 67 Blackburn v. Gaydon, 241 Mo. App. 917, 245 S.W. 2d 161 (1951). 88 Missouri Rev. Stat., Section 389.660. 69 Alexander v. Wabash R.R. Co., 38 S.W. 2d 545 (K.C. Ct. App. 1931). |
