Section 10 Obstruction and Detention

• Library: Real Estate Fundamentals 2011

All landowners may have the right to fend off surface waters and obstruct and repel their flow. Armstrong v. Westroads Dev. Co., 380 S.W.2d 529 (Mo. App. E.D. 1964). But each of those acts is limited. The test is whether there has been a comparative reasonable use. See the discussion of Heins Implement Co. v. Missouri Highway & Transportation Commission, 859 S.W.2d 681 (Mo. banc 1993), abrogated on other grounds bySouthers v. City of Farmington, 263 S.W.3d 603, 613 (Mo. banc 2008). In addition, for a discussion of the damages that can result, see Riddell v. Bell, 262 S.W.3d 301 (Mo. App. W.D. 2008), and Borgmann v. Florissant Development Co., 515 S.W.2d 189 (Mo. App. E.D. 1974). Construction of a berm on a property line that causes water to collect on neighboring land may result in unreasonable, harmful interference with the flow of water when it causes ponding on the neighboring land. SeeAtkinson v. Corson, 289 S.W.3d 269, 274 (Mo. App. W.D. 2009); see alsoAngeles v. Larson, 249 S.W.3d 278 (Mo. App. E.D. 2008) (construction of swimming pool alleged to change contour
of land causing flow of water into neighbor’s yard). “The rule
of reasonable use makes obsolete the negligence and trespass nomenclature in cases involving the diversion of surface waters, because the concepts of negligence and trespass are merged
into, and made subject to, the rule of reasonable use.” Angeles, 249 S.W.3d at 282.

The dredging and filling of certain areas are subject to other regulatory controls. See, e.g.:

· 33 U.S.C. § 1344 (Army Corps...