The opinion
MORGAN, Judge
(dissenting).
I respectfully dissent because of my belief that defendants’ action was consistent with the law of this state under the “common enemy doctrine” pertaining to surface water.
Recently, the Kansas City District of the Court of Appeals had occasion to consider the subject in Camden Special Road District of Ray County v. Taylor, 495 S.W.2d 93 (Mo.App.1973). The Court, therein, reviewed the doctrine from its inception and clearly articulated the scope thereof. For instance, 1.c. 98 [2,3]: “Haferkamp v. City of Rock Hill, 316 S.W.2d 620 (Mo.1958) and Reutner v. Vouga, 367 S.W.2d 34 (Mo.App.1963), as well as the cited cases chronologically tracing Missouri’s judicial history of the ‘common enemy doctrine’, support the undisputable conclusion that the proviso attached to guarding against or diverting surface water, that one ‘exercises reasonable care and prudence’ in doing so (Abbott, supra), [Abbott v. K.C., St. J. & C.B. Ry. Co., 83 Mo. 271 (1884)], does not, in any way, modify or limit the basic and inherent right constituting the heart and core of the ‘common enemy doctrine’ that a landowner may ward off surface water even though in doing so he damages his neighbor. The proviso, that one ‘exercises reasonable care and prudence’ in doing so (Abbott, supra), lends itself solely to and prohibits unnecessarily collecting and discharging surface water to the damage of an adjoining owner. Unyielding to semantic aphasia, the referred to proviso does not limit or modify the ‘common enemy doctrine’ prevailing in Missouri with respect to surface water, but rather it enunciates a unique and limited factual situation to which the ‘common enemy doctrine’ has no application.”
For plaintiffs to prevail under the existing law, a showing had to be made that defendants unnecessarily “collected” and “discharged” water on the servient estate. To do the latter, it was necessary to have done the former. I find nothing in the record that defendants “collected” water either necessarily or unnecessarily. That being true, judgment should be for defendants.