— The defendant was owner of a dam on the Gobbissee river, which caused the water to flow back upon the lands of the riparian proprietors. On June 11, 1829, the parties executed an instrument under seals, which they style an indenture, by which the defendant on the one part, “ in *98consideration of the individual covenants and agreements hereinafter mentioned to be performed,” by Bradstreet and others, riparian proprietors, subscribers individually, on the other part, covenanted and agreed with them individually, that he would, by the first day of October, then next, reduce the perpendicular height of his dam, eighteen inches between the wings ; and further covenanted for himself, his heirs, executors and administrators to keep the dam so reduced forever. “ And the said Bradstreet and others, subscribers hereto, on their part, for the consideration, and for the further consideration of one dollar paid us by said Gardiner, do hereby give, grant, sell and convey to said Gardiner, his heirs and assigns forever, the right and privilege of flowing so much of our lands as will remain flowed by reason of said dam, after the same shall be reduced to the amount before named, and so long as said dam shall continue to be raised no higher than it will be after said reduction. To have and to hold . the said granted privilege to him the said Gardiner, his heirs and assigns forever. The said Bradstreet and others, subscribers hereto, reserving to themselves the right of annulling this grant whenever the said Gar-' diner shall cease to keep his said dam reduced to the extent before mentioned, and the said Gardiner agreeing thereto.”
This instrument appears to have been duly executed by the parties, respectively, the plaintiff being one of the riparian proprietors, and a subscriber, with his seal affixed.
Damages are claimed in this suit for an alleged breach of the defendant’s covenants recited. It appeared that he reduced his dam according to his agreement, and afterward raised it to the original height, and thereby again flowing and injuring the lands adjacent to the waters of the river. For such injury to the plaintiff’s land, in 1847, this action is brought.
Issues were joined on the first and second pleas, and found for the plaintiff. To the third and fourth pleas, the plaintiff demurred generally, and the first question relates to their sufficiency. In the third, the defendant sets out a prescriptive right to flow as alleged, acquired and enjoyed before entering into his covenants; and in the fourth he pleads a similar right un*99der an alleged grant from the Proprietors of the Kennebec Purchase to his ancestor, which has been lost by time and accident.
The substantial issues were, whether the defendant made and kept the covenants declared on. His right to flow independent of those covenants was not involved, but rather his rights under his covenants, and the grant from the plaintiff. It is no answer to the declaration, for the defendant to allege rights that he once possessed, and might still enjoy but for his own acts and covenants. He had power to part with his supposed privileges on his own terms. There appears to have been a compromise of asserted rights or claims, by the parties, when they executed the “ indenture.” Then new relations, rights and obligations were created, which are now the subject of controversy. Prior rights waived, surrendered, abandoned or lost, are no longer material to the issues involving present interests and obligations. The third and fourth pleas must be adjudged bad, for immateriality.
It is insisted that the covenants of the defendant are dependent. Whether they can be so regarded must depend upon a construction of the terms of the instrument, and with reference to the nature of the transaction, and the intention of the parties. Upon a fair interpretation of the “ indenture,” it will be perceived that the defendant agreed to perform, and that the plaintiff performed. The former covenanted, and the latter granted. And when the defendant reduced his dam, the grant took effect, and the performance of his covenants was, in no respect, to depend upon any subsequent act or agreement of the plaintiff. These covenants were unqualified, and unconditional, and must be regarded as independent.
The defendant contends that the true construction of the contract of the parties was, that if the defendant did not keep his covenants, the sole remedy for the proprietors was to annul their grant, and resort to a complaint, under the statute, for flowing. It is true that they reserved, by consent of the defendant, the right to annul their grant whenever he should cease to keep his dam reduced according to agreement; but they did *100not stipulate to release his covenants, or abandon their claim for damages for a breach, in any event. Nor can we understand that it was optional with the defendant Avhether to sustain or rescind the entire contract. The construction eontended for, would be inconsistent with the letter and spirit of the instrument, and the obligations of the parties.
The position that the defendant had a right to íIoav, before executing the contract, is assumed to be in accordance Avith the fact, because it is admitted by the demurrers. If true, it was irrelevant, as before suggested; yet it cannot bejbonceded that by • demurring to a bad plea, the plaintiff admitted the facts therein stated, as independent facts to be used in the trial of other issues, in this, or any other action. The effect of the demurrers Avas to admit the facts stated in the pleas for the purpose of testing then sufficiency in laAV; — but the pleas having been adjudged bad, the admissions do not estop the plaintiff, or affect the determination of his case: Nor do they confirm the defendant’s alleged right to flow, acquired before the grant; a right which he is estopped to claim by his acts and covenants. In legal strictness, facts not well pleaded are never admitted by a demurrer.
In the opinion of the Court the verdict cannot be disturbed on the alleged ground of excessive damages.
Judgment on the verdict.