Section 10 Obstruction and Detention

• Library: Farm Law 2006

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 are 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). In addition, for a discussion of the damages that can result, see Borgmann v. Florissant Development Co., 515 S.W.2d 189 (Mo. App. E.D. 1974).

The dredging and filling of certain areas are subject to other regulatory controls. See, e.g., 33 U.S.C. § 1344 (Army Corps of Engineers § 404 permits); §§ 241.010–241.270, RSMo 2000 (swamp and overflowed lands); I Mo. Environmental Law ch. 8 (MoBar 2^nd ed. 1998, 2002).

Section 404, 33 U.S.C. § 1344, of the Federal Water Pollution Control Act (FWPCA), 33 U.S.C. §§ 1251 et seq., requires a permit for filling and dredging activities except in certain circumstances. While the jurisdiction of the Corps of Engineers under § 404 is limited to “waters...