modation of the tenants'. The facts show apparent necessity, design and arrangements of the parts, with a fenced way leading from a door in the house, and yet the court say under the cases recited this easement does not pass, and the bill of plaintiff was properly dismissed. This case indicated a disposition on the part of the Supreme Court not to extend the doctrine of Kieffer v. Imhoff, and similar cases, beyond the facts exhibited in that case, and to confine implied grants to instances of absolute necessity and unmistakable design in the arrangements of the parts as a permanent condition for the property, either as a whole or in divided parts."

This language is mere dictum and an examination of Adam's Appeal, 7 W. N. C. 86, does not warrant such conclusion as asserted by the Master, and the doctrine there enunciated has never been approved by the Supreme Court. The facts in that case are as follows: One James was the owner of three lots mortgaged as one piece. Subsequently it was sold to satisfy the mortgage. For the sheriff's sale the piece was divided into three properties. At the sale Adams, plaintiff, purchased properties 2 and 3, and Bradley, the defendant, purchased No. 1. A way had always existed leading from the door in house No. 3, to the privy appropriated to that house, which was the center one of the three on the plan. The said way was enclosed by a fence. Over the said way a flat was erected for the use of the occupiers of house No. 3, and accessible to them by a window in the third story. These conveniences had been used and enjoyed by the occupiers of said house from the time of its erection. The defendant Bradley threatened and commenced to tear down the superstructure of the said center privy so far s it extended over the line, and shifted the fence, thereby closing the door in house No. 3, and also to tear down e flat so far as it projected over the line. The bill prayed an injunction. The answer admitted the material allegations, but set up that the privy and flat, as the plaintiff claimed to enjoy them, were encroachments upon the defendant's rights; and claimed the right to enjoy the property according to the metes and bounds as described in the sheriff's deed. The court dismissed the bill, whereupon the plaintiff appealed. The opinion of the Supreme Court is as follows:

"What was claimed by the plaintiff as a permanent easement, was evidently a mere temporary arrangement for the accommodation of tenants. Admitting that the bidders at sheriff's sale could have gained admittance so as to have known of it, they could not have regarded it as of a permanent character, as it must be to fasten it upon a purchaser without an express reservation. Cannon v. Boyd (23 P. F. Smith, 179), following in the line of all the previous adjudications, holds that if the condition of the properties at the sheriff's sale was such as to indicate that the occupants of the one property used the alley in question, and had a right to do so, the verdict should be for the plaintiff, in Kieffer v. Imhoff, (2 Casey, 438), it is said that the pretended privilege or servitude must be palpable and manifest, and obviously permanent in its nature. We think the Court below were entirely right upon the case as presented on bill and answer, in dismissing the bill."

We have recited all the facts in Adams's Appeal, and gave the entire opinion of the Supreme Court. It clearly shows that there is nothing in that ease that warrants the conclusion that it confines implied grants to instances of absolute necessity.

I conclude therefore, that there was no error in the body of the charge or in the answer to the point complained of by the plaintiff as to what constitutes an implied easement.

The plaintiff further contends that the court erred in submitting to the jury the fact as to whether or not the gates erected by the plaintiffs and alleged to have been damaged by the defendants was or was not a reasonable obstruction. The three lots, one owned by the plaintiff, one owned by O'Brien, and one owned by Milne, each fronted about sixty-one feet on North Street, each lot of said width extended north 134 feet to sandlots. The plaintiffs' lot being the corner lot extended 164 feet from south to north along Sixth Street. It was alleged, and the jury so found, that there was an alley ten feet in width along the north end of the three lots, which alley opened into Sixth Street The easement in dispute in this case had been extended from Sixth Street, ten feet in width across plaintiffs' lot a distance of 61 feet. The plaintiffs erected a gate at the entrance to the alley on Sixth

Street; also erected a gate on the division line between the plaintiffs' lot and the adjoining lot owned by O'Brien. The two gates were erected on a town lot on which an alley was imposed ten feet in width and sixty-one feet in length with vacant sandlots on the one side of the alley and a fence, a gate and a stable on the other side of the alley. These were swinging gates, hung to posts at one end and fastened by staple and a hook at the other end. The jury found there was imposed upon the plaintiffs' lot an implied easement. The court instructed the jury if they so found they should go further and determine the extent of the easement, which they did in their verdict, and then the court submitted to he jury to determine the fact under all the evidence and circumstances in the case whether the gates were a reasonable or an unreasonable obstruction of the defendants' easement or right on plaintiffs' lot. The plaintiffs now contend the court erred in submitting that fact to the jury, contending that it was the business of the court to determine that question as a matter of law. We cannot agree with the learned counsel in this position. Clearly the court was right in submitting that question to the jury.

In Connery v. Brooks, 73 Pa., 80, an alley passed over a town lot. The contention between Connery and Brooks was as to whether Connery might maintain a gate at the entrance from the public highways, and in that case the court held it was proper to submit the question as to whether the gate was an unreasonable obstruction to the jury. Williams, Judge, page 84, says::

"A gate may be so placed as to be a practical and unreasonable obstruction to the free use of a passage way; and it may be so constructed and placed as not to amount to any practical obstruction to its use. Whether the gate in this case amounted to a wrongful obstruction was therefore a question of fact for the jury." See also Ellis v. Academy of Music, 120 Pa., 622.

In the case at bar there were two gates. It was not pretended by the plaintiffs that these gates or either of them was erected for the common benefit of the three lot owners or even for the benefit of the plaintiffs, but it was testified by one of them that the gates were erected to keep the defendants from passing over the alley, and this statement was emphasized by the undisputed testimony

that trespass notices had been placed upon the alley to keep the defendants from passing thereover-a public notice that the plaintiffs put the notice there not only to prevent the public but to keep the defendants from passing over it. The principle as enunciated by the courts in relation to placing gates at the entrance to private alleys, is clearly set forth by Head, Judge, in Nichols v. Cornet Band, 51 Superior Ct., 145. On page 151, it is said.

"But it does not follow that everything in the nature of a barrier dividing the private alley from the public street would amount to a legal obstruction of the right of the plaintiff to reasonably enjoy his easement. Because the alleyway is subject to the free and unobstructed use by the owners or tenants of the three lots, the law does not, under all the circumstances, require that it should be absolutely thrown open to be used by everybody and thus probably become a place which could easily be converted into a nuisance to all concerned. If for the protection of their common rights, one or more of the parties should erect across the opening a swinging gate that would permit the free entrance or exit of vehicles and that would be so constructed as to be easily operated, we are not prepared to say that such a gate would be an obstruction to the legal right of any one of the lot owners: Helwig v. Miller, 47 Pa. Superior Ct. 171."

Certainly under the evidence produced by the plaintiffs in this case as to the purposes for which the gates were erected, the law as given to the jury by the court was correctly stated, and it was a fact for the jury to determine under all the authorities. The motion for judgment n. o. v. on the whole record in favor of the plaintiffs must be denied.

The fourth reason assigned for a new trial has been fully discussed and answered in passing upon the motion. for judgment n. o. v. We see nothing in this case that requires us to enter into any further discussion thereof, as after a reading of the charge of the court we are satisfied the other three reasons are without merit, and the motion for new trial must be refused.

Now, January 6, 1922, for the reasons set forth in the foregoing opinion, motion for judgment non obstante veredicto upon the whole record in favor of the plaintiffs

is overruled and rule discharged.

Now, January 6, 1922, motion for new trial overruled and rule discharged, and judgment is directed to be entered in favor of the defendants, B. F. O'Brien and M. R. Milne, and against the plaintiffs, George P. Stein, Nora Winters Mitchell, Anna Maria Stein, Executors of the last will and testament of John Stein, late of the Borough of Meyersdale, Somerset County, Pennsylvania, deceased, for costs, upon the payment of the jury fee by said defendants.

BERK v. LANDIS.

Equity-Accounting-Partnership—Resulting

Trust-Evi

dence Statute of Limitations-Statute of Frauds-Acts of April 22, 1856, P. L. 533, Sec. 6, and of October 13, 1840, P. L. 7, Sec. 19.

Where a bill in equity, by clear and apt language, alleges that a resulting trust existed between the parties, it does not offend against the Statute of Frauds, and the declaration or creation thereof need not be in writing.

Land bought with partnership funds is partnership property as between the partners, however it may be as to strangers and creditors, even though the title thereto is held by one of the partners in his own name, and to establish this fact parol evidence is admissable.

The face of the bill not revealing that suit is barred by the statute of April 22, 1856, P. L. 533, Sec. 6, that question cannot be determined on demurrer.

A bill, being for an accounting, should have attached thereto the certificate required by the Act of October 13, 1840, P. L. 7, Sec. 19, that statute not having been repealed by section 17 of the Equity Rules. An amendment, however, will be allowed.

In the Court of Common Pleas of Lehigh County, in Equity. No. 1 April Term, 1923, in Equity. Nathan Berk v. Edwin S. Landis Bill in Equity. Demurrer. Overruled.

Butz & Rupp, for Plaintiff.

Gernerd & Boyle, for Defendant.

Reno, J., September 17, 1923. The bill alleges the formation of a partnership by oral agreement, a contribution to the capital thereof by complainant and the transaction of the business for a period approximating