dissenting.
I agree with all that Mr. Justice Douglas says in his dissent, but I would for an additional reason reverse this case. The waters interfered with here were surface and percolating or subsurface waters. Respondent had always enjoyed the economic advantage of having its surface and subsurface water drain into Dardenne Creek. The raising of the water level in the Mississippi has interfered with this advantage. But surface and subsurface waters are outlaws in Missouri, as at common law, and anyone may defend against them and interfere with their natural drainage.1 No right exists under Missouri law to have surface or subsurface water flow naturally onto adjoining land. Landowners may build embankments, dykes, or other obstructions to stop the flow of surface water upon their land. Although it appears that under Missouri law a riparian owner may not dam a watercourse so that it is obstructed or the lands of another are flooded,2 no authority has been brought to my attention *815which would indicate that the obstruction of drainage by raising the water level of a stream confers a cause of action. I had not supposed that just compensation requires the Government to pay for that which a riparian owner may freely do under state law. The Government, by interfering with the drainage into Dardenne Creek, is not “taking” any “right” of respondent.
“. . . not all economic interests are ‘property rights’; only those economic advantages are ‘rights’ which have the law back of them, and only when they are so recognized may courts compel others to forbear from interfering with them or to compensate for their invasion.” United States v. Willow River Co., 324 U. S. 499, 502.
Since the United States may with impunity cause land lying within the bed of the stream to be overflowed as a superior right to control navigation, and since respondent has no right to the unhampered drainage of surface and subsurface water, it follows that the Government has taken no right of respondent. Therefore it is not bound to pay compensation. It would be anomalous indeed that while the Government may flood lands lying between high- and low-water marks without paying compensation, it is liable for an interference with drainage of surface water by raising the water level to high-water mark. I would reverse the judgment.
See, e. g., Goll v. Railroad, 271 Mo. 655, 197 S. W. 244; Johnson v. Leazenby, 202 Mo. App. 232, 216 S. W. 49; Mehonray v. Foster, 132 Mo. App. 229, 111 S. W. 882; Applegate v. Franklin, 109 Mo. App. 293, 84 S. W. 347; Gottenstroeter v. Kappelmann [reported as Gottenetroeter v. Kapplemann and Gottenetroeter v. Kappleman], 83 Mo. App. 290; Collier v. Chicago & A. R. Co., 48 Mo. App. 398.
See Keener v. Sharp, 341 Mo. 1192, 111 S. W. 2d 118; Greisinger v. Klinhardt, 321 Mo. 186, 9 S. W. 2d 978; Waterworks Co. v. Jenkins, 62 Mo. App. 74.