Section 17.64 Surface Water

• Library: Tort Law 2016

E. (§17.64) Surface Water

The third type of water body is surface water. There are no Missouri cases questioning the full right of landowners to make whatever use they deem advisable of the surface water found on their land. Rather, the caselaw has primarily concerned itself with the problem of how surface water can be disposed.

The term "surface water" refers to the form or class of water that:

is "derived from falling rain or melting snow"; "rises to the surface in springs and is diffused over the surface of the ground while it remains in that state"; or is the overflow and floodwater that becomes severed from or leaves the main current of a watercourse and spreads out over the ground.

Keyton v. Mo.-Kan.-Tex. R.R., 224 S.W.2d 616, 622 (Mo. App. W.D. 1949). Surface water ceases to be "mere surface water" when it reaches a natural watercourse. Hirsch v. Steffen, 488 S.W.2d 240, 245 (Mo. App. E.D. 1972). But even though drained surface water is returned to a natural watercourse, it regains its classification as surface water when it once again overflows from a watercourse, i.e., escaping waters once again become surface water. Jones v. Des Moines & Miss. River Levee Dist. No. 1, 369 S.W.2d 865 (Mo. App. E.D. 1963). It is very well established in Missouri that overflow water from rivers and streams is surface water. Goll v. Chicago & A. Ry. Co., 197 S.W. 244 (Mo. 1917).

A discussion of the law as it used to be is essential to understanding what the law is not. Before 1993, Missouri followed the "common-enemy" doctrine with regard to surface water. This doctrine stated that each landowner was entitled to regard surface water as an "enemy" and, therefore, could treat this "enemy" in a way that would reduce injury to his or her land without regard to the effects that were caused to a neighbor. City of Hardin v. Norborne Land Drainage Dist. of Carroll Cnty., 232 S.W.2d 921 (Mo. 1950). Thus, a landowner could ward off surface water from his or her land onto that of a neighbor without liability.

This doctrine applied solely to surface water in its natural diffused state and not to water that had been artificially collected and accelerated in volume. Casanover v. Villanova Realty Co., 209 S.W.2d 556 (Mo. App. E.D. 1948). But this limitation did not prevent landowners from erecting walls or taking whatever other reasonable measures they wished to ward off surface water flowing onto their land. Armstrong v. Westroads Dev. Co., 380 S.W.2d 529 (Mo. App. E.D. 1964).

The Supreme Court of Missouri’s first step away from the "common-enemy" doctrine is found in Looney v. Hindman, 649 S.W.2d 207 (Mo. banc 1983). This case involved surface water running off the defendant’s land onto the...