Den v. Kinney , 5 N.J.L. 552 ( 1819 )

Kirkpatrick C. J.

In chancery, the complainant must shew his right, if he would obtain this benefit. It is not so at common law. It is against the mode of proceeding here to spread out the title upon such applications. But notwithstanding this, where there is a contest for land we will as far as possible keep the property from waste, and in the state in which it was at the time when the suit commenced. But then every cutting is not to be considered waste. The use of the wood for the common purposes of the estate, is not waste. Here the land is annexed to a furnace; cutting wood for it is no waste ; it is using the land in the ordinary mode. The court will not therefore interfere.

By the court:

The rule refused.