Section 5 Obstruction or Diversion

• Library: Real Estate Fundamentals 2011

Under the riparian doctrine, a watercourse may not be unreasonably obstructed or diverted. Jacobs v. Frangos, 329 S.W.2d 262 (Mo. App. E.D. 1959) (bank erosion from artificial flows is a violation of riparian rights).

The obstruction of a natural watercourse that results in the overflow of water creates essentially strict liability for the ensuing damages. Any obstruction that is the proximate cause of harm to another creates liability without regard to the reasonableness of the obstruction or the degree of care used in its construction. The theory is based in trespass. See, e.g.:

· Haith v. Atchison Cnty., 793 S.W.2d 151 (Mo. App. W.D. 1990)

· Corrington v. Kalicak, 319 S.W.2d 888 (Mo. App. E.D. 1959)

· Webb v. Carter, 98 S.W. 776 (Mo. App. E.D. 1906)

· Kelso v. C.B.K. Agronomics, Inc., 510 S.W.2d 709 (Mo. App. W.D. 1974)

Moreover, both the nuisance and riparian rights doctrines have been used to impose liability for overflow. Welton v. Martin, 7 Mo. 307 (1842); Wood v. Craig, 113 S.W. 676 (Mo. App. W.D. 1908). The general flow of Missouri caselaw, however, indicates that the rule enunciated in Heins Implement Co. v. Missouri Highway & Transportation Commission, 859 S.W.2d 681 (Mo. banc 1993), in which the Supreme Court of Missouri expressly disavowed the modified common enemy rule and expressly adopted the comparative reasonable use rule for disputes involving surface waters, will likely be extended to all claims for obstruction or diversion. See Klokkenga v. Carolan, 200 S.W.3d 144, 154–55 (Mo. App. W.D. 2006).

Compare the Supreme Court’s decision in Rector v. Tobin Construction Co., 377 S.W.2d 409 (Mo. banc 1964). Nevertheless, this case is probably distinguishable because it involved a bridge contractor doing work for the state highway department. The fill that caused the obstruction to the nonnavigable natural waterway, although not specifically directed by the plans and specifications:

· was incidental to...