Berkey, P. J., Jan. 6, 1922: The plaintiffs brought an action of trespass against the defendants alleging the defendants on or about March 24, 1921, with force and arms did break the close of the plaintiffs by tearing down two gates to the damage of the plaintiffs which had been erected by the plaintiff's on a certain lot of ground situate in Meyersdale Borough, Somerset County, conveyed by Kendall et vir to John Stein; who by his last will and testament vested the title thereto in the plaintiffs. The defendants filed an affidavit of defense to the plaintiffs' complaint admitting that on or about March 24, 1921, they did remove certain gates erected by the plaintiffs, but denying that the removal of the same was unlawful, asserting they were guilty of no trespass.

The defendants further assert in their affidavit of defense that prior to November 7, 1908, the lot now owned by the plaintiffs and the lot owned by each of the defendants were all owned by Minnie E. Kendall and Samuel A. Kendall, her husband, and on November 7, 1908, the lot now owned by O'Brien, one of the defendants, was aliened by the Kendalls; that on April 13, 1901, the lot owned by Milne was aliened by the Kendalls.

That prior to the time of the conveyance or alienation by the Kendalls of either of said lots, the Kendalls had created over the lot now owned by plaintiffs, the title then still remaining in the plaintiffs' lot in the Kendalls, an easement or right of way in favor of the defendants' lots existed over said plaintiffs' lot as an open, permanent, notorious and visible easement or right of way in favor of the defendants' lots; and that at the time of the conveyance by the Kendalls of the lots to the defendants' predecessors in title, an easement existed in favor of the defendants' lots over and across the plaintiffs' lot, open, permanent, notorious, visible and manifest, and that since the creation of said easement in favor of the defendants' lots over the plaintiffs' lot, said easement has existed continuously in like manner and has been used by the defendants and their predecessors in title to the date of the bringing of the suit. The trial of the action resulted in a verdict which reads as follows:

"We the jurors impanelled in the above case find the defendants have an easement on the plaintiffs' lot for the following purposes. For ingress or egress to their pro

perties and the gates erected over the passage way by the plaintiffs was an unreasonable obstruction thereof, wherefore we find a verdict in favor of the defendants."

The plaintiffs filed (a) a motion for judgment n. o. v. upon the whole record in favor of the plaintiffs; and (b) motion for a new trial, assigning as reasons therefore, (1) the verdict was against the law of the case; (2) the verdiet was against the charge of the court; (3) the court erred in refusing to affirm the first point for charge submitted by the plaintiffs; and (4), the court erred in not declaring as a matter of law that the manner in which the plaintiff's maintained the gates across the alleged right of way was not an unreasonable obstruction thereof.

In support of the motion for judgment n. o. v. in favor of the plaintiffs, counsel earnestly urge the defendants did not sufficiently prove an easement by implication. It is asserted that three things are essential to the creation of an easement by implication: (a) A separation of the title; (b) That before the separation takes place, the use which gives rise to the easement shall have been so long continued and so obvious to show that it was meant to be permanent; (c) That the easement shall be necessary to the beneficial enjoyment of the land granted or retained.

Counsel admits the first of the three essentials was present in this case, but that there was a conflict of testimony as to the second essential, and that as to the third the testimony was clear and defendants neither alleged nor did in fact prove any element thereof, but to the contrary showed that the easement was not necessary; and furthermore complained that the court erred in qualifying the fourth point for charge submitted by the plaintiff, which point and answer thereto read as follows:

"Fourth: An easement by implication cannot be created unless before separation of title takes place, the use shall have been so long continued and obvious as to show that it was meant to be permanent and that such easement is necessary to the beneficial enjoyment of the land granted or retained.

This point modified by inserting the words 'or convenient,' and, as modified, affirmed.

It is the settled law in Pennsylvania that an owner of

land may arrange as he pleases, doing no injury to others, and that any ways or other privileges which he may provide for the necessary or convenient use of the different parts of the land, or of structures on it, will remain as servitudes upon the parts subjected to them by him, in the hands of subsequent purchasers with notice, or when the easements are continuous and apparent."

As to the second essential to which counsel calls the court's attention, there was evidence submitted by the parties to make it obvious to the court that there was such a dispute as to the facts that it was clearly within the province of the jury to determine the disputed facts in issue under proper instructions by the court, and upon this point there is no complaint as to the law as given to the jury by the court, wherefore, this second position argued by counsel needs no further notice.

It is insisted most strenuously, however, by the learned counsel for the plaintiffs that implied easements must not only clearly appear from the intention of the parties as shown by the terms of the grant, the surroundings of the property, and the other res gestae of the transaction, Fotzell v. Philadelphia, 211 Pa. 1, Neely v. Philadelphia, 212 Pa., 551; Sharpless v. Willauer, 39 Sup. Ct., 205; Commonwealth v. Burford, 38 Sup. Ct., 206, 207, but that implied grants of servitudes or easements must be shown to have come into being and remained in existence because of absolute necessity and unmistakable design in the arrangement of the parts as a permanent condition for the property, either as a whole or in divided parts, and in support of the position that absolute necessity must accompany all of the other elements recited as applicable to an implied easement, cites as authority for this position. Francies's Appeal, 96 Pa. 200. An examination of that case shows, that it was alleged Charles Stafford owned the land later belonging to the plaintiff Francies, and defendant Shannon, at the corner of Grantham Street and River Avenue in the City of Allegheny, leaving an open yard, in the rear of these houses paved with brick, for the common use of each and all, and for light and air, and with an alley-way between two of the houses to Grantham Street, and an alley-way in the rear of the houses in River avenue, for the use of all the said houses and their tenants, and with a permanent drain and water

course from the plaintiff's houses into and through said alley-way, running to said Grantham street, and with a hydrant opposite said alley in said yard, for the common use of all of said houses, and that the same had existed, and continued to exist, and were in use for the necessary convenience and use of said houses until the bringing of the suit.

That until near the time of the bringing of the action the defendant Shannon had respected the plaintiff's rights in the alley-way and watercourse, &c., but had then proceeded to build over and obstruct and entirely destroying the same, entirely shutting in the plaintiff's property from all access to said alley-ways or hydrant, and stopping off all flow of water by said watercourse and confining it to the plaintiff's yard.

It will be observed in that case that the Master in an opinion (adopted by the Supreme Court) (on page 208) says:

"It will be observed also in this case there was no express grant, no right by prescription, and no way of necessity' claimed."

"Easements are interests in land, and depend for their creation on a grant or on prescription, which presumes a grant; and that a parol license is insufficient for the purpose of their creation."

of

"Grants are either express or implied. Also, easements are of two classes, viz: Continuous, those which the enjoyment is or may be continual, without the interference of man, as a running stream, a water spout, or the right to light and air, and discontinuous, such as can only be had by the interference of man, as rights of way, or a right to draw water. As a general rule, connuous easements pass, as implied grants by construcon of law, and discontinuous easements do not." Ut supra, 207.

While in that case it seems to be held that discontinuous easements must be shown to have had origin in absolute necessity, it is certain that doctrine does not apply to the case in hand, because the contest waged in the case at bar was as to a continuous easement, an interest in land or in the lot of the plaintiffs by the defendants. The authorities are clear that an owner of

land may arrange it as he pleases, doing no injury to others, and that any ways of other privileges which he may provide for the necessary or convenient use of the different parts of the land or of structures on it, will remain as servitudes upon the parts subjected to them by him, in the hands of subsequent purchasers with notice, or when the easements are continuous and apparent. The easements thus created, being for the specific use of the lands for which they were provided, become appurtenances of those dominant estates; they pass by a conveyance of the estates to which they are appurtenant": Held v. McBride, 3 Sup. Ct. 155.

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Among the very earliest cases in Pennsylvania on the subject of implied easements, Kieffer v. Imhoff, 26 Pa., 438, it is said:

"Upon the severance of the estate, by alienation of part of it, the alienee becomes entitled to all continuous and apparent easements which have been used by the owner during the unity of the estate, and without which the enjoyment of the several portions could not be fully had."

On page 443, in that case, it is further said:

"The owner may undoubtedly alter the quality of the several parts of his heritage; and if he does so, and afterwards alien one part, it is but reasonable that the alterations thus made, if palpable and manifest, and obviously permanent in their nature, shall go to the purchase in the condition in which they were placed, and with the qualities attached to them by the previous owner. Easements which are apparent and continuous are not merely those which must necessarily be seen, but those which may be seen or known on a careful inspection by a person ordinarily conversant with the subject."

However, our attention is called to the language found on page 213, in Francies's Appeal, which is as follows:

"The case of Adam's Appeal, 7 W. N. C. 86, cited by respondent, is the last case on the subject decided by the Supreme Court. By reference to the case it will be seen that while Kieffer v. Imhoff and Connor v. Boyd are mentioned and sustained, it was held that the easement claimed by the plaintiff as a permanent easement was evidently a mere temporary arrangement for the accom