Jackson ex dem. Van Rensselaer v. Andrew

Per Curiam. This being a hard action, with a view to the forfeiture of the estate, there ought not to be a new trial, unless the jury were clearly misdirected as to the law. The Judge, on the trial, stated the fact to be doubtful, whether turning the creek had killed the timber ; and by a review of the evidence, he was fully justified in saying so. He added, also, that the fact was of no consequence, for the new growth was more valuable than the old, and so it had been no injury to the inheritance. This we deem to be correct, when applied to this case. In Co. Lit. (53. a.) the law is laid down, that “ if the tenant do, or suffer waste to be clone in houses, yet, if he repair them before action brought, there lieth no action of waste against him.” If, then, the turning the creek produced waste, by the destruction of the timber, twenty years ago, and if the landlord lies by, until the inheritance is benefited by the act, it would be unreasonable to admit him to say, that there was a forfeiture by an act in which he had so long acquiesced, and by which, at the time he sought redress, he was, in truth, benefited. The •same remark, in a good degree, applies to the digging the clay for brick; the injury, if any, has long since ceased. It •is true, that a tenant cannot, under.the pretence of advantage to the reversioner, change the nature of buildings, •and many cases show that such changes, though beneficial, would be waste. Indeed, we have little hesitation in shy-^ ing, that the alteration of the creek, which was obviously ) an act of good husbandry, if the consequence had been the ) destruction'of 'the timber in the swamp, would not be waste.1 [435] The tenant, in doing an act proper in itself, cannot be made a wrong doer,by a consequence which he could not ahtici-pate, or foresee. Motion for a new trial denied*