Mosier maintained and operated a grain mill which was located on a higher level than certain land owned by Shelton. Being near a creek, it was operated by water power and it was necessary to use a dam in which to back up sufficient water. Shelton’s land, in which he had planted corn, and had been cultivated at some expense, was overflowed by a break in the dam. The corn became worthless, and the land was depreciated in value, because of the resulting swampy condition due to the overflow.

Shelton sought to recover damages for $1200 but a judgment in favor of Mosier was returned. Shelton took it to the Court of Appeals, which reversed the judgment of the Common Pleas Court for the following reasons:

That the defense set up by Mosier, that mill had been operated for over 21 years openly and continuously; is not so sufficient as to strengthen the operation and maintenance thereof.

Mosier contends that a prescriptive right as to use of creek arises out of long occupancy of mill. The height of the dam in question was not over 12 feet from bed of creek. That is the fall of water necessary to turn wheel was not greater than that distance.

Shelton on the other hand, declares that the operation of the mill was wrongful in that the filling of the dam made it impossible for the creek to have the natural flow capacity it had before.