(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 *768that 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.