Section 5 Obstruction or Diversion

• Library: Farm Law 2006

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 County, 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).

Rector v. Tobin Construction Co., 377 S.W.2d 409 (Mo. banc 1964), 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 the performance of the defendant’s contract with the state highway department
• reasonably necessary for the purpose; and
• a reasonable, customary, and approved method, and
• the contractor was not negligent and did not intend to damage the plaintiff’s crops

Therefore, even though § 236.270, RSMo 2000, at first blush appears to read as if a person might be strictly liable for causing injury to another as a result of building or heightening any dam or any other stoppage or obstruction on or across a watercourse without first obtaining permission...