The case arose due to a dispute between neighbours. Embrey used the water from a stream to operate a mill on his land, accepting that some water from the stream could be used by Owen to irrigate his land. However, Embrey claimed that Owen, through creating a channel to divert water from the stream at a place that was upstream from Embrey, had interfered with Embrey's rights. The issue was whether Owen's use of the water was incongruent with Embrey's rights to the water from the stream.