Duhaime's Law Dictionary


Common Enemy Doctrine Definition:

A rule that landowners can dispose of unwanted surface water in any way they see fit, without liability for resulting damage to one's neighbor.

Related Terms: Civil Law Rule

Also known as the common enemy rule

Distinguished from the less dramatic, more democratic, arguably fairer civil law rule.

A rule of liability in regards to surface water stated by Justice Shrum of the Missouri Court of Appeals in Bettinger as follows:

"This doctrine held that surface water was a common enemy to all landowners; thus, he or she was allowed to guard against it in his or her own way. As such, when a landowner improved his or her property, he or she was not responsible for damages to the neighbor's land by reason of the fact that surface water might thereby have been turned upon his or her neighbor, so long as the improvements were done in a proper manner.

"Over the years, however, courts often applied the common enemy rule differently, created exceptions to it, and frequently disagreed on the scope of the exceptions. As such, the (Missouri) court concluded in 1993 that surface water case precedents could no longer be reconciled, and the common enemy rule had outlived its usefulness. Therefore, (the court) rejected the common enemy doctrine and accepted the rule of reasonable use.

"The rule of reasonable use does not lay down any specific rights or privileges regarding surface waters, but leaves each case to be decided on its own facts in accordance with "principles of fairness and common sense."

In Grundy, Justice Ireland of the Supreme Court of Washington wrote:

"In its strictest form, the common enemy doctrine allows landowners to dispose of unwanted surface water in any way they see fit, without liability for resulting damage to one's neighbor.

flood waters"Washington courts first articulated the doctrine more than a century ago: surface water, caused by the falling of rain or the melting of snow, and that escaping from running streams and rivers, is regarded as an outlaw and a common enemy against which anyone may defend himself, even though by so doing injury may result to others."

In Keys v Romley, Justice Mosk of the Supreme Court of California reviewed the common enemy doctrine comprehensively as follows:

"Stated in its extreme form, the common enemy doctrine holds that as an incident to the use of his own property, each landowner has an unqualified right, by operations on his own land, to fend off surface waters as he sees fit without being required to take into account the consequences to other landowners, who have the right to protect themselves as best they can.

"The doctrine appears to have had its American inception in decisions of Massachusetts courts about 1850 or later.... The courts which evolved and applied the extreme common enemy doctrine apparently acted from an exaggerated and uncritical respect for the rights and privileges of land ownership as expressed in the maxim cujus est solum, together with an apparent belief that the only alternative would be to adopt the rule of natural servitude of natural drainage which would hinder the improvement of land and stultify economic development.

"The common enemy doctrine has been considerably qualified in later decisions, and it is doubtful that any modern court would apply it in its full rigor. The courts of a number of the jurisdictions in which the common enemy doctrine has been adopted as the basic rule have modified the doctrine to some degree by importing into it qualifications based upon concepts of reasonable use or of negligence. For example, the Arkansas court1 has said that in fending off surface waters the landowner must do no "unnecessary" harm to others.

"The common enemy doctrine (has been) modified by the requirement that the landowner must not negligently or unnecessarily injure his neighbor's land... (A)s to urban areas the rule provided the land might be improved so as to divert surface waters so long as the landowner acted in a reasonable manner. And the requirement of "reasonable" action was apparently also recognized.

 "The Oklahoma court2 has given its approval to the common enemy doctrine as modified by the rule of reason, said the court in , adding that under this rule each proprietor might divert surface water, casting it back on, or passing it along to, the next proprietor, provided he can do so without injury to the adjoining landowners, but no one is permitted to sacrifice his neighbor's property in order to protect his own. It was held that a landowner who, by constructing artificial channels, cast the surface water upon the defendant's lower land in such a manner as to cause injury was not entitled to complain when the lower owner erected a dam to fend off the water.

"The second rule governing surface waters is known as the civil law rule. Diametrically opposed to the common enemy doctrine is the basic civil law rule which recognizes a servitude of natural drainage as between adjoining lands, so that the lower owner must accept the surface water which drains onto his land but, on the other hand, the upper owner has no right to alter the natural system of drainage so as to increase the burden."

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