
    ERASTUS F. BROWN and another, Resp’ts, v. ENOCH C. BELL, App’lt.
    Costs—Title—Burden of establishing.
    Appeal from judgment entered on report of referee, .
    
      E. K. Brown, for app’lt.
   Per Curiam.

The validity of the title in this case depended upon adverse-possession in the plaintiffs, and the defendants were justified under the authorities (see Kip v. Hirsch, 53 N. Y. Supr. Ct. Rep. 1 and 9), in exacting a-judgment on the subject, of a court of competent jurisdiction. As was suggested by the appellant’s counsel, there was practically a consent that the title would be accepted, though founded upon adverse possession, if it could be properly established. It seems to have been properly established, but the appeal herein rests chiefly upon the impropriety of charging the appellant with the costs of the action,, which was regarded as necessary to quiet all questions, as to title. Consequently the only questions which we consider and pass upon relate to the costs.

We think under the circumstances disclosed by the record, that the burden of establishing the title rested upon the respondents, and that the costs incurred in that process should not be charged upon the appellant. In equity and justice the imposition of costs seems to be erroneous.

For that reason the judgment appealed from is reversed as to costs and. affirmed as to the remainder, without costs to either party upon this appeal.  