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. *766The 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 *767where 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.