10.16 Causes of Action

• Library: Real Estate Practice Deskbook (2019 Ed.)

a. (§10.16) Causes of Action

With a few exceptions, a riparian owner has the right to have the water of the stream flow by or through his or her premises in its natural mode, course, and volume. Bollinger v. Henry, 375 S.W.2d 161 (Mo. 1964). This right is not absolute and is subject to the right of upper or lower riparian owners to make reasonable use of the water flowing through or by their property. This reasonable use could include some degree of obstruction or detention consistent with riparian owners' common-law rights in the property.

Missouri has followed the common-law rule that a landowner may not obstruct a natural watercourse without liability for ensuing damages to others but that a landowner may otherwise treat surface water as a common enemy and obstruct its flow without liability as long as the landowner does so reasonably and not recklessly or negligently. Happy v. Kenton, 247 S.W.2d 698 (Mo. 1952). Happy seems to indicate that it may be per se unreasonable for a person to obstruct a watercourse, regardless of the degree, if such an obstruction causes injury to another. Id.

The obstruction of a natural stream in such a manner or to such an extent as to infringe on the rights or injure the property of another has also been held to constitute a nuisance. Payne v. Kansas City, St. J. & C. B. R. Co., 20 S.W. 322 (Mo. 1892); Scheurich v. Sw. Mo. Light Co., 84 S.W. 1003 (Mo. App. E.D. 1905). Unreasonableness alone is sufficient to justify an injunction against
the obstruction of a stream (a dam creating a small pond), requiring its removal, with an award of compensatory damages. Edmondson v. Edwards, 111 S.W.3d 906 (Mo. App. S.D. 2003).

In Armstrong v. Westroads Development Co., 380 S.W.2d 529, 537 (Mo. App. E.D. 1964), the court stated that it was well settled in Missouri "that a riparian owner is entitled to have a stream or watercourse continue to flow through or on [the owner's] lands in its natural course without any [injurious] obstruction of the channel or digression of the waters by other owners."

Any obstruction of the flow of a natural watercourse resulting in injury to another renders the obstructing party liable for damages, Hirsch v. Steffen, 488 S.W.2d 240 (Mo. App. E.D. 1972), regardless of how carefully the obstruction may have been made, Beauchamp v. Taylor, 111 S.W. 609 (Mo. App. E.D. 1908); Kelso v. C. B. K. Agronomics, Inc., 510 S.W.2d 709 (Mo. App. W.D. 1974).

Beauchamp again seems to imply that obstruction resulting in damages is per se unreasonable. In short, an injured party may sustain a cause of action without any...