
    The New York Central and Hudson River Railroad Company, Respondent, v. Village of Ossining and The Hudson River and Eastern Traction Company, Appellants.
    Second Department,
    December 30, 1910.
    Real property — dedication of lands for highway purposes — use of private way.
    In order to constitute a dedication of lands for highway purposes the acts and declarations of the owner must be deliberate, unequivocal and decisive, manifesting a positive and unmistakable intention to abandon permanently his property to a specific public use. In such a case an estoppel in pais works against him.
    Evidence examined, and held, to justify a finding that a railroad which opened a way to its station for the conduct of its business and for the convenience of its patrons did not thereby dedicate the lands as a public highway.
    If an owner opens a private way for his own use his permission to the public to travel over it for many years as if a highway is not proof of an intention to dedicate it as such.
    Thomas, J., dissented, with opinion.
    Appeal by the defendants, the Village of Ossining and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 31st day of October, 1910, upon the decision of the court rendered after a trial at the Eockland' Special Term.
    
      Frank I. Foung and Glenn M. Gongdon \Joseph A. Greene with him oil the brief], for the appellants.
    
      John F. Brennan, for the respondent.
   «Tenes, J.:

It was mutually agreed on the argument that the sole question is whether the land in Main street was part of a public street. That question depends upon the fact whether there has been a dedication by the plaintiff, the owner thereof. As there is no proof of any written dedication or of the filing of. any map* the inquiry is whether the acts of the owner and the surrounding circumstances indicate an intention to set apart this land for highway purposes. The acts and declarations ■ of the owner must be “ deliberate, •unequivocal.and decisive, manifesting a positive and unmistakable intention to permanently abandon his property to tli.e specific public use.” (Holdane v. Trustees of Village of Cold Spring, 21 N. Y. 474.) If so, an estoppel in pais works against him. (Ibid; Morgan v. Railroad Co., 96 U. S. 716.) If an owner opens a private way for his own use, his permission to the public to travel over it for many years, as if a highway, is not sufficient proof of an intention to dedicate. (Speir v. Town of New Utrecht, 121 N. Y. 430.) And thus ways of approach to a wharf, or a dock, or a place of business, or to a railroad station, although the- owner permit general use thereof for highway purposes, are not regarded as if dedicated perforce of such permission and a user under it. (City of Buffalo v. D., L. & W. R. R. Co.) 68 App. Div. 488; affd., 178 N. Y. 561; Irwin v. Dixion, 9 How. [U. S.] 10; Railroad v. Roseville, 76 Ohio St. 108 ; Georgia R. & B. Co. v. City of Atlanta, 118 Ga. 486 ; City of Chicago v. C., R. I. & P. Ry. Co., 152 Ill. 561; Durgin v. City of Lowell, 3 Allen, 398; Williams v. N. Y. & N. H. R. R. Co., 39 Conn. 509.) In Irwin's Case (supra) the court, per Wood-bury, J., say : “ While, then, any body,might be allowed to travel over this space from the warehouse east to the wharf and fiver, when convenient and not injuring the owner, it would hot be because it had been intended to give to the public a right of way over these premises, but because he himself intended to travel over it, and while so doing, and so leaving it open, would not be captious in preventing others from traveling there.” In Durgin v. City of Lowell (supra), the court, per Chapman, J., says: “The way \Vas necessary for the use of .the company and their tenants and servants, and it wras necessary for them to keep it constantly open and unobstructed, so that all persons might travel over it; and furthermore, it would be very difficult to ascertain whether a' person traveling on it was doing so as i mere traveler and without any connection with the company or their tenants,, and if he were so using it his use would be merely incidental. And as the travel of- strangefs would do no.appreciable damage, it should be regarded, under these circumstances, as permissive, and not adverse to the rights -of the company, and as furnishing no evidence that the company intended to dedicate the way to public úse. It differs from the ordinary case where the proprietor might without inconvenience to himself keep the way closed against the public if he chose to do so, and where his own use of it is only occasional, while that of the public is constant and frequent, and is such that it may be regarded as adverse to his private rights.”

I think that the evidence is sufficient to justify the finding that the strip of land in Main street was used by the plaintiff in the working of its business and for the convenience of its patrons. The testimony of the witness Palmer seems clear upon that subject. He testifies that before Secor road was open Bailroad avenue was the only means of going to and from the station. The defendant’s witness Wheeler testifies that people go down Main street and cross over and walk down to the station; that there was nothing else down there on the west side of Bailroad avenue. It terminates at the station. ' •

The judgment is affirmed, with costs.

Hirsohberg, P. J., Woodward and Bich, JJ., concurred; Thomas, J., read, for reversal.

Thomas, J.

(dissenting) :

The trial court found : “ That during all of the time that the-said land in question has remained open and been used by the public it has been the only means of approach to the plaintiff’s railroad station at Ossining, and that the plaintiff and its patrons have always used said strip of land in that manner.”

This finding is not supported by the evidence, which shows that the land in question is not the only means of approach, nor is it the usual approach to the station. The evidence on which plaintiff relies to sustain this finding is that it was necessary to approach the station over the land before the Secor road was - opened, which was about thirty years ago, and that a sidewalk runs from the station to Main' street for a distance of from 90 to 100 feet. The witness Wheeler states: “ That is a little sidewalk about three feet for the use of people going to the station. People use it. They go down Main Street and cross over and walk down to the station. There is nothing else done there on the west side of Bailroad Avenue. It terminates at the station.” The fact is that persons do not usually approach the railroad station over such land, for in that case they would cross the tracks at a point several hundred feet from the railroad station,, and that the usual course of travel to the station is not in that direction. It further appears (and I find no contradiction) that Eailroad avenue lias on.some occasions been put in repair by the authority ■ of the defendant village, although on one occasion the railroad company' assisted by furnishing .gravel, which, however^ was hauled and spread by the village and at its., expense; that a permanent curb has been built in the .street, and remained for many years, and that the village granted a franchise tó a street railroad company to construct its railroad on the land nearly twenty years before the trial, which was done pursuant to a statutory notice of a meeting of the village officers for the purpose of considering such grant.. The plaintiff, by this- action •would dispossess the village and the railroad company holding under such grant. Thé maps seem to be defective by omitting to indicate by proper inscription the land and the station, and it may be that the learned trial justice was in this way misled in making the ■ finding. ■ Where the owner of land permits'-for some thirty years the-public to use it for purposes of a road, and leaves the burden of its maintenance upon the village and by acquiescence ratifies its grant of a franchise therein to a railroad company, the conclusion should be that there was a dedication, and certainly there was an acceptance. ' In any case, in view of the erroneous finding, there should be a retrial of the case, with some attempt to adjust rights and equities, to enable the improvement to be carried on with due observance of vested interests. ■ Therefore, the judgment should be reversed, and a new trial granted, costs to abide the event.

Judgment affirmed, with costs.  