Written by Kiefer Starbird
The common enemy doctrine and Missouri’s right to reasonable use doctrine are two distinct legal principles governing the management of surface water.
Historically, Missouri adhered to the common enemy doctrine, which treated surface water as a common enemy to all landowners. Under this doctrine, each landowner had the right to fend off surface water from their property without regard to the consequences for neighboring properties. This meant that a landowner could take measures to protect their land from surface water, even if it resulted in water being diverted onto a neighbor’s property, as long as the actions were done in a “proper manner.” The doctrine allowed landowners to use their property as they saw fit, including constructing barriers like dams or dikes to repel surface water
However, the common enemy doctrine was not without limitations. Missouri courts recognized that landowners could not collect and discharge surface water in a way that caused substantial harm to neighboring properties. This led to the development of a modified version of the doctrine, which imposed a duty of reasonable care and prudence on landowners to avoid unnecessary harm to others
In 1993, the Missouri Supreme Court in Implement Co. v. Missouri Highway & Transportation Commission abrogated the common enemy doctrine in favor of the reasonable use doctrine The court found that the common enemy doctrine had become overly complicated and inconsistent due to numerous exceptions and modifications. The reasonable use doctrine, on the other hand, balances the rights of property owners to use their land with the rights of others to be free from unreasonable interference. Under this doctrine, surface water disputes are analyzed as a form of nuisance, considering both the property owner’s right to use their land and the right of others to enjoy their property without substantial impairment
The reasonable use doctrine requires that landowners use their property in a way that does not unreasonably harm neighboring properties. This means that while landowners can still take measures to manage surface water, they must do so in a manner that is reasonable and does not cause undue harm to others. The adoption of this doctrine aims to promote equitable distribution of costs and benefits among competing land uses, ensuring that land development and enjoyment are optimized while minimizing conflicts.
