
    In the Matter of the Opening of One Hundred and Sixteenth Street. Ada Rehan and Others, Appellants; The Mayor, Aldermen and Commonalty of the City of New York and Others, Respondents.
    
      Basements — rights in a street of abutting owners — damages for land, condemned for a street — when no' dedication arises from land being bounded on an unopened, street— street easements, when they arrise—• the intention governs and is determined by the cireumstanees of the ease.
    
    An abutting owner, having an easement in a strip of land entitling him. to have it maintained as a street or road, sustains no damage when the fee is taken by a municipality for use as a street or highway.
    The municipality acquires the fee of the land and holds it in trust for use as a public street, and, when the fee is thus acquired, neither the city nor the State has the power to devote the property to any use inconsistent with that for which it was acquired and is held, except upon paynient of compensation to the abutting property owners. The owner has all the rights in the road or highway which he enjoyed previously, and no property of his can be said to have been taken by such a proceeding.
    An intent upon the part of an owner, to dedicate to the public land in a street, is absolutely essential, and unless such intent can be found in the facts and circumstances of the particular case no dedication will be presumed to have been made.
    Whether a conveyance by an abutting owner contains a grant of an easement, express or implied, depends upon the intention of the parties, and that intention is to be ascertained from the terms of the grant, the circumstances attending upon the transaction, the particular situation of the parties, and the state of the thing-' granted.
    The early decisions in this State, relating to cases where the streets upon which the land conveyed was hounded were actually used hy the public as streets, are not applicable to the decision of the question whether the law implies a grant where no street ever existed, and where the description of the property carefully excludes all interest in the street itself, and merely uses one side cf the street as a boundary for the property conveyed.
    A grant of land bounded upon a street, the fee of which is in the grantor, does not of itself amount to a public dedication of the street.
    The owner of property who owns the fee in a street, subject to an easement granted to private individuals, is entitled to substantial damages when the fee is taken hy a municipality for a public street; hut where a private easement to ..use the street exists, the abutting owner is entitled to nominal damages only where the fee is not taken, hut simply an easement for the public.
    Where the owner of property on both sides of a street has conveyed all his property to grantees who have thereby acquired an easement in such street, he is entitled to the value of the property taken, subject to the private easement of his grantees, which value, consequently, is merely nominal.
    Implied easements may arise in two ways : First, where the parties are presumed to have contracted in reference to the condition of the property at the time of the grant and, in this manner, as appurtenant to the property conveyed, there will pass all of those rights and incidents which were actually in use at the time of the execution of the grant, and, second, the grant of an easement may b|i_ implied when it is necessary to the enjoyment of the thing granted.
    In proceedings taken hy the city of New York to open a, portion of One Hundred and Sixteenth street, the commissioners of estimate and assessment allowed the New York Hospital a sum of money for certain lands included in the bed of the street, not for its value subject to the public easement, but as full compensation for its fee value.
    Upon the plan of the city, laid out under chapter 115 of the Laws of 1807, One Hundred and Sixteenth street was laid out as a public street as was also Eleventh avenue which ran at right angles to it. After the filing of this plan, the New York Hospital, in 1818, acquired a large piece of property, of which, (except of the part conveyed by it to Andrew Carrigan as hereinafter stated), it has remained in exclusive and uninterrupted possession, through which property Eleventh avenue subsequently was opened as a public street. O.ic Hundred and Sixteenth street has never been so opened or used. The south boundary line of the property owned by the New York Hospital crossed One Hundred and Sixteenth street diagonally, and struck the south boundary of such street about 176 feet west of Eleventh avenue, thus including with the hospital property a piece of ground south of One Hundred and Sixteenth street as laid out upon the plan which was about 57 feet upon Eleventh avenue, and 176 feet- upon the south line of One Hundred and Sixteenth street. In October, 1866, the New York Hospital conveyed to Andrew Carrigan the piece of land owmed by it south of One Hundred and Sixteenth street, and on the corner of that street and Eleventh avenue, by a deed which entirely excluded the land in Hie street which was then owned by the Hew York Hospital and which made the south line of One Hundred and Sixteenth street the northerly boundary of the piece so conveyed to Carrigan, the consideration of which deed was one dollar.
    
      Held, that the commissioners of estimate and assessment were correct in holding that the fee of the street was in the Hew York Hospital, and was not subject to any easements;
    That the deed to Andrew Carrigan did not disclose any intent to dedicate One Hundred and Sixteenth street to the public, nor give him an implied easement in that street;
    That, in view of the fact that the hospital retained its property upon the other side of the street, and, therefore, its interest to control the bed of the street, and, in fact, maintained exclusive possession of the street itself, which largely . exceeded in extent the land granted to Carrigan, it would not be presumed to have been the intention of the parties that by the conveyance, for a nominal consideration,of this small strip of land the beneficial enjoyment of a so much larger strip of land should be parted with.
    Appeal by Ada Rehan and others from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 3d day of July, 1895, confirming the report of commissioners of estimate and assessment in the matter of the opening of One Hundred and Sixteenth street in the city of New York.
    
      Truman II. Baldwin for the appellants.
    
      John P. Dunn, for the city of New York, respondent.
    ' Elihu Boot and Wilson II. Powell, 'for the Society of the New York Hospital, respondent.
    
      Isidor Grcmjhead, for John P. Huggins, respondent.
   Ingraham, J.:

The city of New York instituted proceedings for the opening of a portion of One Hundred and Sixteenth street in the city of New York, and commissioners of estimate and assessment were-appointed under the provisions of section 964 of the Consolidation Act (Laws of 1882, chap. 410). The commissioners have made' their report,, by which they have allowed the respondent, the New York Hospital, the sum of $54,533.40 for certain land included in the- bed of the street; and from an order confirming that report certain, of the pwners of property that were assessed have appealed.

The commissioners, in making their award, have evidently allowed the New York Hospital the full value of the land taken, subject to no easement, either in favor of the public or of any abutting owner. And the sole question presented is, whether the commissioners adopted a correct principle in making this award; and that depends upon whether the New York Hospital owned this strip of land, the value of which has been awarded to it by the commissioners, in fee, free from any easement or light of way. If such an easement existed, we think that the principle that the commissioners adopted was wrong and that the award should have been the value of the property subject to the easement.

It is now settled in this State that one holding an easement in a strip of land which entitled him to have it maintained as a street or road sustains no damage in consequence of the taking of the fee of such road or street as a street or highway. After it is thus taken and maintained by the public authorities, the abutting owner’s easement still remains unimpaired. He has all the right in the road or highway that he had before enjoyed, and no property of his is taken by the proceeding. Thus in the case of City of Buffalo v. Pratt (131 N. Y. 299) it was expressly held that the owner who does not own the fee of the land in the street has no right to compensation upon the taking of the street, under legislative or municipal sanction for a public street so long as the fee of the street is held by the public or municipal authorities and no use is made of the street that will obstruct free passage upon it, or amount to a nuisance, or deprive the owner of the enjoyment of the easement of light, air and access.

Under this proceeding, the city will acquire the fee of the property taken, to be held in trust, however, for use as a public street; and when the fee is thus acquired, neither the city nor the State has the power to devote such property to any use inconsistent with that for which it is acquired and is held, except upon payment of compensation to the abutting property owners. (See Story v. N. Y. El. R. R. Co., 90 N. Y. 173; Kane v. El. R. R. Co., 125 id. 164.)

The New York Hospital was the owner of the fee of the land taken, and was entitled to be paid its value in this proceeding. Under section 970 of the Consolidation Act (Law's of 1882, chap. 410), the commissioners were required to make a just and equitable estimate and assessment of the loss and damage, if any, over and above the benefit and advantage to the respective owners, lessees, parties and persons respectively entitled unto or interested in the lands, tenements, hereditaments and premises so required for the purpose of opening said street. It is the property opened by the New York Hospital that is to be valued, and if such property is subject to any easement either in favor of the public or of an individual, the award should be for the value of the property subject to such easement, as such easement is not in this proceeding taken or appropriated. The one question that we have to determine, therefore, is whether or not this property of the New York Hospital is subject to any easement either in favor of the public or of any abutting owner.

There was no dispute as to the facts before the commissioners. It appeared that upon the plan of the city laid out under the provisions of the Laws of 1807 (Chap. 115), One Hundred and Sixteenth ■ street (the street in question) was laid out as a public street, as was also Eleventh avenue, running at right angles to One Hundred and Sixteenth street. In 1818, after the filing of that plan laying out this street and avenue, by a deed dated March 27, 1818, and recorded April 9, 1818, the New York Hospital acquired a large piece of property, and subsequently entered into possession of the property thus acquired, erected upon it a hospital for insane patients, and has remained in the exclusive and uninterrupted possession and enjoyment of such property up to the present time. Subsequently Eleventh avenue was opened through the property, and at the time of the conveyance to Carrigan hereafter mentioned such avenue was a public street, the fee of which had been acquired under the act of 1807 (Chap. 115), and such street was maintained by the city of New York as an open public street. One Hundred and Sixteenth street, how ever, has never been opened or used as a street, but the portion of it in question was inclosed by a substantial in closure and occupied by the New York Hospital. The south boundary line of this property thus acquired by the New York Hospital crossed One Hundred and Sixteenth street as laid out on the plan of the city diagonally running in a northwesterly and southeasterly direction, and struck the south boundary of One Hundred and Sixteenth street 176 feet 2 inches west of Eleventh avenue; the hospital thus owning a piece of ground to the south of One Hundred and Sixteenth street as laid out, about 57 feet 7 inches upon Eleventh avenue, and 176 feet 2 inches upon the southerly boundary of One Hundred and Sixteenth street as laid out.

One Andrew Carrigan appears to have been the owner of the piece of property to the south of that owned by the New York Hospital, and this piece of land to the south of One Hundred and-Sixteenth street owned by the New York Hospital would be a portion of four lots upon the southwest corner of One Hundred and Sixteenth street and Eleventh avenue, being a portion of two lots on the avenue and two lots upon the street as those lots were laid out upon the map of the city. By a deed dated October 25, 1866, the New York Hospital conveyed this parcel of land south of One Hundred and Sixteenth street to the said Carrigan by a deed which the appellants claim subordinated the property of the New York Hospital in the street to an easement.

It is clear from an examination of the property that this conveyance to Carrigan ivas for the purpose of squaring out his property so that he should have the title to all laud on the southwest corner of One Hundred and Sixteenth street and Eleventh avenue. The consideration of that conveyance was one dollar, and there is no evidence that the hospital received any other consideration than that named in the deed. The deed was the usual full covenant warranty deed, the piece of land conveyed being described as beginning at a point on the southerly line of One Hundred and Sixteenth street, distant one hundred and seventy-six feet two inches westerly from a point on the westerly side of the Eleventh avenue where the southerly line of One Hundred and Sixteenth street intersects the said westerly side of said Eleventh avenue, and running from said first-mentioned point easterly along said southerly line of One Hundred and Sixteenth street one hundred and seventy-six feet two inches to said point of intersection of said southerly line of One Hundred and Sixteenth street with the westerly side of Eleventh avenue; thence southerly along said westerly line of Eleventh avenue fifty-one feet seven inches ; thence northwesterly along the center of a stone Avail fifty-five feet to a point distant from said southerly line of One Hundred and Sixteenth street in a straight line parallel to the westerly line of said Eleventh avenue twenty-eight feet six inches; thence northwesterly along the center of said stone fence twenty-four feet, four inches to a point distant from said southerly line of One Hundred and Sixteenth street, in a straight line parallel to said westerly line-of Eleventh avenue twenty-one feet nine inches; and thence-northwesterly along the center of said stone fence one hundred and five feet two inches to the said point or place of beginning.”

Immediately after that conveyance the hospital proceeded to-build a substantial fence on the southerly side of One Hundred and Sixteenth street as laid out, to Eleventh avenue, and from that, time to the present has remained in the exclusive possession of the property, using it solely and exclusively for its own purposes. No-.claim was ever made by either the grantee in that deed, or the public to any portion of One Hundred and Sixteenth street owned by the hospital, nor was the same used in any way as a street or highway The description in this deed carefully excludes any portion of the bed of One Hundred and Sixteenth street. The property conveyed is not bounded by the street, but the boundary line commences at a point- on the sotitherly line of the street and runs, thence along the southerly side of the street to the westerly side of Eleventh avenue; clearly showing- that it was the intention of the-parties to use the southerly side of this street as laid out upon the map, as a boundary, and to convey no interest in the street itself to-the grantee.

We think it is clear that there was no dedication of this street to-the public by this conveyance. An intent on the part of the owner of land to dedicate is absolutely essential, and unless such intention can be found in the facts and circumstances of the particular case, no dedication exists. To deprive the owner of his land, the intent to dedicate must clearly and satisfactorily appear. (See 2 Dillon on Mun. Corp. p. 751, § 636, and cases cited. See, also, Easton Bor. v. Rinek, 116 Penn. St. 1.)

The intention to dedicate not only does not appear in this case, -but it clearly appears that no such intention existed. The language of the description excluding the street itself and making the southerly line its boundary, the location of the property conveyed, fronting, as it did, upon an open public avenue (Eleventh avenue), the acts of the parties in continuing the exclusive possession of the grounds laid out as a street, in the hospital, and the fact that the-land was never used as a street, either by the public or the abutting owners, clearly establish the absence of such intention.

A more difficult question remains to be determined, however, and that is whether Carrigan, as the grantee of the New York Hospital, 'acquired an easement in this strip of land laid out as One Hundred and Sixteenth street, which would entitle him to claim as against the New York Hospital that the street as laid out upon the plan of the city should remain a public street, so that as grantee of the property conveyed to him he would be entitled to the use of the-land in front of such property for light, air and access’. There is no-express grant of such easement contained in the deed, and if one exists, it must be implied from the fact that the northerly line of the property conveyed was the south side of the street.

It is well settled in this State that “ without making such a. dedication to the public, a grantor may, by selling lots and describing them as bounded on a street running through his own land, create an easement in the land called a street in favor of his own grantees, and that, although the fee of such land remains in him, it is incumbered by that easement.” (See Matter of Eleventh Avenue, 81 N. Y. 447.) Whether there is such a grant of an easement, however, express or implied, depends entirely upon the intent of the parties to the grant; and in construing the grant, the court will take into consideration the circumstances attendant upon the transaction, the particular situation of the parties, the state of the country and the state of the thing granted, for the purpose of ascertaining the intention of the parties. (See U. S. v. Appleton, 1 Sumner, 500.) Whether or not an easement was granted depends upon the construction to be given to the grant made by the parties, and before an easement can be implied it is necessary that there should be a “ concurrence as well of the owner of the heritage which it is wished to charge with the servitude as of him in favor of whose heritage it is desired to create it.” (See Washb. on Ease. [3d ed.] p. 39.)

Whether a right of way or other easement is embraced in a deed is always a question of the construction of the deed, having reference to its terms and the practical incidents belonging to the grantor of the land at the time of the conveyance. The intention of the parties is to be learned from the facts. (Huttemeier v. Albro, 18 N. Y. 50.) It is thus the intention of the parties that is to govern, and that intention is to be ascertained by the terms of the grant, the circumstances attending upon the transaction, the particular situation of the parties, and the state of the thing granted. As before stated, there is here no express grant of the easement. The question is, "whether one can be implied from the terms of this grant.

This question of implied easements was much discussed by the old Supreme Court of this State, and the Court of Errors, in questions arising upon the opening of streets in the settled portion of the city (New York) laid out under the act of 1807 (Chap. 115), and it was there finally held that where the owner of lots abutting on a street, actually opened and in use as a public street, sold lots, bounding them upon such open street, he dedicated the street to the public, and upon the fee of such street being ■acquired by the city under the act of 1807, or of 1813 (Chap. 86 [R. L.]), the owner of the street held such fee subject to the right of the public to use the street, and also subject to an easement appurtenant to the lots sold, and was entitled to but nominal damages. The authority of these decisions has been questioned, and in some important particulars expressly repudiated. (See Bissell v. N. Y. C. R. R. Co., 23 N. Y. 61; and, also, City of Buffalo v. Pratt, 131 id. 296.) In all the cases decided previous to the ones last cited, it appears that the streets upon which the land conveyed was bounded were actually used by the public as streets: It was not that the street had been laid out as a street upon, a map or plan of the city, but that ■ such street in addition to being laid out had been actually used as a street, and the owner of the fee of the street had conveyed to various grantees lots thereon abutting, for which he had received a substantial consideration. The street, therefore, existed as a fact, and it was in relation to that fact, taken together with the conveyance of land abutting on the street, and the enhanced price for which the land had been sold, by which compensation for the grant of such an easement in the street had been received, that it was held that sncli conveyance gave to the public and the grantees of the lots an easement in the street, that the same should be laid out and used as a public street to its full width; and that it would he inequitable to allow such a grantor to compel his grantees to pay him a substantial price far the right to use the street, for which hy the enhanced price at which the lots had been sold, he had once been paid. In none of the cases that we have been able to discover — and we think we have examined all of them — was it held that a mere conveyance of a piece of land for a nominal consideration, by a description that carefully excluded all interest in the street itself, merely using the side of the street as a boundary for the property conveyed, and where no street had ever in fact existed, as a matter of law implied a grant of an easement in such -street. As before stated, the authority of these cases has been seriously questioned by the Court of Appeals, and several of the principles which they were supposed to have established have been expressly repudiated. We have now three late decisions of the Court of Appeals which, taken together, we think, establish certain rules that should be applied in cases of this kind.

Thus we may say that a grant of land bounded upon a street of which the fee is in the grantor, whether by the terms of the grant the fee of the street would he included or not, does not of itself amount to a public dedication of the street; that the owner of property abutting on a street, who owns the fee of the street subject to an easement granted to private individuals, is entitled to substantial damages when the fee is taken by a municipality for a public street; that where there exists a private easement to use the street, the owner of the fee of the street subject to such easement is entitled to nominal damages only, where the fee is not taken, but only an easement for the public, as no greater right was taken by the public than he had before granted to his grantees; and where the owner of property on both sides of a street or highway has conveyed all of his property bounded on the street to grantees who have thereby acquired an easement in the street for use as a street, he is entitled to the value of the property taken stibject to the private easement which already incumbers the property, which value is merely nominal. (See City of Buffalo v. Pratt, 131 N. Y. 299 ; Matter of Vil. of Olean v. Steyner, 135 id. 346, and Matter of Adams, 141 id. 300.) And to this extent the cases before referred to in the old Supreme Court and the Court of Errors have been overruled; but all of these cases have proceeded upon or are consistent with the general proposition that in construing a grant, to •determine whether or not a grant of an easement is implied, the •crucial question is whether or not it was the intention of the parties that such an easement was to be included in the grant.

We fully recognize that in many cases such an intention will be ■presumed to exist from the nature of the grant itself, from the "nature of the property conveyed, from the terms used in the description, or from the location or situation, and the use to which the prop•erty had been put before the making of the grant. In most of the •decisions in which such grants have been implied, the implication has arisen on one of two grounds. First, that the parties are presumed to contract in reference to the condition of the property at the time of the grant, and thus, as appurtenant to the property conveyed will pass all of those rights and incidents which were actually in use at the time of the execution of the grant. Many illustrations •could be given of implied grants arising from a situation of this •character, and they will be found cited and commented upon in Washburn on Easements in the section entitled “ of ways created by grant; ” and this implication will arise wherever the owner of an ■estate grants a piortion of it, and ways have existed or drains been used over the portion reserved, for the benefit of the portion granted. A grant of all rights to use the p>ortion reserved for such ways or drains will he implied. The illustration used in one of the earliest ■cases is : If one be seized of Black-acre and White-acre, and use a -way over White-acre from Black-acre to a mill, river, etc., and he grant Black-acre to B. with all ways, easements, etc., the grantee shall have the same conveniency that the grantor had when he had Black-acre.” (Staple v. Heydon, 6 Mod. Rep. 1.) Such an easement there passes as appurtenant to the thing granted and the implication of the grant of such easement arises from the condition of the use of the property at the time of the grant.

The other principle upon which a grant of an easement is implied is when it is necessary to the enjoyment of the thing granted, the familiar illustration of which is the implication of the grant of a right of way where the owner of two lots of ground, one fronting upon a highway, the other having no access to the highway, grants the lot having no access to the highway to a stranger, who would have no means of access to his lot except over the lot reserved. In that case •the law would impfiy .the grant of a right of way over the lot reserved, as without it the grantee would be deprived of the beneficial use of the property granted.

The easement in New York city streets that was implied in the cases referred to did not, however, come strictly within either of these principles, for such easement was implied when the property abutted upon two streets in both, and thus no way of necessity could be implied, and the grant that was implied was more than a mere appurtenance to the land granted, in use at the time of the grant. But the court then did what Mr. Justice Stobt in U. S. v. Appleton (supra) said it was the duty of the court to do, viz., took into consideration the circumstances attending upon the transaction, the particular situation of the parties, the state of the country and the state of the thing granted, for the purpose of ascertaining the intention of the parties. At first the court held that no easement was granted at all under such circumstances; that it was not a way of necessity. (See Underwood v. Stuyvesant, 19 Johns. 181; Matter of Mercer St., 4 Cow. 542.) But subsequently these rulings were reversed, and it would appear to have been held that from such conveyance there was a dedication to the public and an implied easement in the grantee. (See Matter of Lewis St., 2 Wend. 474; Livingston v. The Mayor, etc., 8 id. 88.) But the implication of this dedication and of this grant of an easement was based upon the intention of the parties, the existence of which was assumed from the situation of the property, the fact of the plan of the city as laid out into avenues and streets having been filed, that the streets as so laid out had been used as streets, that purchases had been made of lots for the purpose of erecting buildings thereon; and it was held that when a purchase is made of a lot bounding upon a street in the city of New York which is not yet opened, the purchaser is entitled to all the benefits and advantages belonging to the property of which he has become the owner; one of the most essential of which is that when the street is opened upon the application of the corporation, conformably to the law regulating the opening of streets in that city, he will have a lot fronting upon a street upon which a building may be erected, without being compelled to compensate the owner of the fee for the full value of the land thus appropriated, the presumption being that the purchaser of the lot paid an enhanced price for the same in con¡¿deration of the lot being bounded on a street. (See Matter of Lewis St., supra.)

But assuming that these cases are binding authorities, the principles that were there applied would not apply here. There was no single lot conveyed by this grant, but a part of several lots, the plot conveyed having a frontage upon Eleventh avenue. There could be no presumption that the purchaser of this gore paid an enhanced price for the same in consideration of the lot bounded on the street, as this was not the purchase of a lot bounded upon a street, but a purchase of a narrow strip of land which, upon the opening of One Hundred and Sixteenth street, would be entirely disconnected from the grantor’s other property and would be comparatively valueless to it, but which would be valuable to the grantee in squaring out and completing the property owned by him.

Then the hospital retained all of its property upon the other side of the street, and thus retained its interest to control the bed of the street. It maintained the exclusive possession of the street itself, and the interest that it retained in the street exceeded largely the extent of the land that it granted. The property conveyed was a narrow strip on the south side of the street, about 116 feet long with an average width of about 25 feet, while the property comprising the bed of the street was a piece of land 100 feet in width and over 300 feet in length, comprising about eleven city lots which appear in these proceedings to be worth over $54,000.

It could hardly be presumed to have been the intention of the parties that by the conveyance, for a nominal consideration, of this small strip of land, the beneficial enjoyment of a so much larger strip of land could have been intended. The effect would be that the right acquired by the implied grant was much more important and valuable than that of the property expressly conveyed. The New York Hospital has here made but a single conveyance, obviously for the mere purpose of straightening the boundary line between itself and its neighbor, reserving all of the residue of its property abutting on the street, and reserving to itself the substantial use of the fee of the street. It seems to us clear that not only is there an absence of proof of any intention to give to the grantee any right in or use of this piece of ground laid out as a street, but that, on the contrary, the intention of the parties is clear that no such right was intended to be conveyed and that no such grant can be implied.

We do not intend in any way to infringe upon the rule that under ordinary circumstances the implication of sucli a grant could arise from the terms of the grant itself, when the owner of property abutting on a street conveys a portion of the property bounded by the street. That principle is well settled, and it is apparent that its application is ordinarily necessary to carry out the intention of the parties. But we are of the opinion that the peculiar facts and circumstances of this case make it an exception to the general rule and affirmatively show that this conveyance of a comparatively small triangular piece of land did not grant as an appurtenance to it, the beneficial use of a piece of property many times its size and value and all for the consideration of one dollar.

We are of the opinion, therefore, that the commissioners were entirely right in holding that the New York Hospital was the owner of the fee of this property, not subject to any easement, and as their award in view of the testimony seems to have been reasonable, it must be approved.

The order confirming the report of the commissioners must, therefore, bo affirmed, with costs against the appellants.

Van Brunt, P. J., Barrett, Rcjmsey and Williams, JJ., concurred.

Order affirmed, with costs against the appellants.  