Section 9 General Rights and Liabilities

• Library: Farm Law 2006

Three general theories of rights and liabilities have been developed: the common enemy rule; civil law; and the comparative reasonable use rule. See, e.g., Broadbent v. Ramsbotham, 11 Ex. 602, 156 Eng. Rep. 971 (Ex. 1856) (creating the pure common enemy rule in England); Jennifer S. Graham, Comment, The Reasonable Use Rule in Surface Water Law, 57 Mo. L. Rev. 223 (1992); Lawrence O. Davis, TheLaw of Surface Water in Missouri, 24 Mo. L. Rev. 137 (1959). Before 1993, Missouri followed the modified common enemy rule. Restatement of Torts §§ 822–864 (1939); Roberts v. Hocker, 610 S.W.2d 321 (Mo. App. W.D. 1980).

In Heins Implement Co. v. Missouri Highway & Transportation Commission, 859 S.W.2d 681 (Mo. banc 1993), the Supreme Court of Missouri expressly disavowed the modified common enemy rule and expressly adopted the comparative reasonable use rule. Thus, from 1993, a landowner may make a reasonable use of his or her land and may make reasonable modifications to the natural drainage pattern as long as the landowner does not cause unreasonable harm to his or her neighbors. The issue to be decided is whether the gravity of the harm outweighs the utility of the drainage alteration.

Subsequent cases have followed Heins, 859 S.W.2d 681. See, e.g.:

• Mo. Highway & Transp. Comm’n v. Rockhill Dev. Corp., 865 S.W.2d 765 (Mo. App. W.D. 1993)
• Campbell v. Anderson, 866 S.W.2d 139 (Mo. App. W.D. 1993)
• Kueffer v....