The Oregon Water Frontier – 1954: “Water’s for Fighting”

Within the first five years of my practice and before 1955, I was introduced to the axiom that “Whiskey’s for drinking; water’s for fighting” in a case in which Mr. Fischer and Mr. Howard,  disagreed about the use of water within an irrigation ditch that provided water for crop production upon their adjoining lands. Both claimed the water and used it, but not in any mutually agreeable rotation. Each simply took the water when needed, dammed the ditch or opened the neighbor’s dam to acquire all of the water flow.

Over time this procedure frustrated both and they met on a road, “neutral ground,” that separated their properties. Mr. Fischer came with a shovel. Mr. Howard came unarmed.  The Oregon Supreme Court found, both were “light weights”. Mr. Howard, then having the water, resisted the demand of Mr. Fischer by throwing a bucket full at Mr. Fisher with the assertion that it was the only water that Mr. Fischer would receive. Mr. Fisher did not take this kindly.  They proceeded to adjust their differences in the customary way, more than once.

The result was that Mr. Fisher visited a chiropractor the first time at a cost of $25.00.  After the contestants terminated their second discussion by “a roll” into the irrigation ditch, Mr. Fischer was treated for a broken rib at a medical cost of $35.00. Twice was quite enough.  Mr. Fisher then sued for assault and battery. The trial was extensively involved with competing claims of water rights, defense of person and property, and other miscellaneous claims. A twelve person jury trial produced a verdict for the plaintiff for $37.00, but a few days later Mr. Fischer moved for a new trial,  and it was granted. I appealed to the Oregon Supreme Court, and if one is so inclined he can Google the appellate opinion or find it at 201 Or 426.

Long and scholarly opinions were written for the majority of four Justices, concurred in by one Justice, and a dissent by two Justices. The trial Court was reversed, a new trial was denied,  and Mr. Howard prevailed in this unusual case in which he was defending the jury verdict in favor of his adversary. Having accomplished this under whelming victory, I was convinced at 25 that I was ready for the Western water wars in the years ahead. 1954 is a long time ago.