delivered the opinion of the Court. Upon the facts agreed, we are of opinion, that this action cannot be maintained. It is an action of covenant broken, founded on the covenants contained in a deed from the defendant to one Amasa Henshaw, which purports to convey a privilege of drawing water from a pond, to be raised by a dam to be erected by the defendant ten feet high, and to be kept by him in repair. Henshaw however was to draw no water when the water should be four feet below the top of the dam. Th« defendant covenanted that he was seised in fee of the grantee premises, and had good right to sell and convey the same tr Henshaw ; and the plaintiff alleges a breach of this covenant and claims to recover as the assignee of Henshaw. The de fendant’s counsel contend, that this was a personal covenan, or covenant in gross, and was not assignable. And the cases of Webb v. Russell, 3 T. R. 402, and Russell v. Stokes, 1 H. Bl. 562, seem to support this ground of defence. This covenant could not run with the land, for no land was granted, and to make a covenant run with the land, it is not sufficient that it is of and concerning land.

But if this ground of defence could not be sustained, it would not avail, the plaintiff; for there is another objection tc *71the action which is insuperable. It appears, that at the time of the defendant’s grant to Henshaw he had no right to the privilege granted, although he supposed he had. On raising a dam to the height of about six feet and a half, it was found that the water flowed back upon the dam of an existing and more ancient mill above, and the plaintiff was compelled to draw the water down ; and it is agreed that the defendant had no right to raise a dam higher than six feet; so that the grant failed, and the defendant’s covenant as to title, was immediately broken, and was not assignable.

Plaintiff nonsuit.