dissenting:
This is a very difficult case. In reversing the decree entered by the trial court, the majority has made out a far better case for appellants than they were able to make out for themselves. In doing so, however, the majority has made its own review of the evidence and has determined *14factually that an easement by implication was not intended by the parties. Therefore, it reverses the trial court’s determination that the parties did intend to create an easement by implication. Although this is a mixed question of law and fact, I am of the opinion that the majority has usurped the fact finding function of the trial court.
In 1955, Stephen and Marie Burch purchased premises known as 141 North Main Street, Telford, Bucks County, where they conducted a tavern business. In 1959, they purchased the adjoining premises at 147 North Main Street. This lot had a frontage on North Main Street of sixty-three feet and contained a dwelling house, which the Burches used as their residence. Between 1959 and 1963, the Burch-es paved an area behind 141 North Main Street and behind a portion of 147 North Main Street, which they used as a parking lot for patrons of the tavern. In 1974, the Burches sold the tavern business and conveyed the tavern at 141 North Main Street to Edward G. Grubb and Earlene Grubb, husband and wife, who continued to operate the tavern. In 1981, the Grubbs sold the tavern business and granted a lease option for the tavern property to Gerald P. Hofmann, who incorporated the tavern and later exercised the option to buy the real estate. Between 1974 and 1989, the patrons of the tavern continued to use the entire paved parking lot to park their cars. The Borough of Telford prohibited and continues to prohibit parking on North Main Street. On July 14, 1989, the Burches conveyed the residence at 147 North Main Street to Eric D. and Susan J. Boyer, who immediately notified Hofmann that parking at the rear of their property would no longer be permitted. The Boyers also placed protective parking curbs which prevented cars from being parked on their property. Hoffman sued for equitable relief. The trial court concluded that Hofmann had an implied easement to use the paved lot at the rear of 147 North Main Street for parking by his patrons.
In Burns Manufacturing Co. v. Boehm, 467 Pa. 307, 356 A.2d 763 (1976), the Pennsylvania Supreme Court articulated the applicable principle of law as follows:
*15[W]here an owner of land subjects part of it to an open, visible, permanent and continuous servitude or easement in favor of another part and then aliens either, the purchaser takes subject to the burden or the benefit as the case may be, and this irrespective of whether or not the easement constituted a necessary right-of-way.
Id., 467 Pa. at 314, 356 A.2d at 767, quoting Tosh v. Witts, 381 Pa. 255, 258,113 A.2d 226, 228 (1955). See also: Owens v. Holzheid, 335 Pa.Super. 231, 238, 484 A.2d 107, 111 (1984); Restatement of Property § 474. In other cases, however, the courts have said that the rule merely creates an inference that an easement by implication was intended by the parties. This inference can be rebutted by evidence of circumstances showing a contrary intent. Thus, in Lerner v. Poulos, 412 Pa. 388, 194 A.2d 874 (1963), the Court said: “The determination of the existence or creation of an implied easement depends upon the intention of the parties as inferred from the circumstances existing at the time of the severance of the tract.” Id., 412 Pa. at 392, 194 A.2d at 876. See also: Schwoyer v. Smith, 388 Pa. 637, 643, 131 A.2d 385, 388-389 (1957); Restatement of Property § 474, comment b. The rationale for this approach has been stated in comment a to Section 476 of the Restatement of Property, as follows:
a. Rationale. An easement created by implication arises as an inference of the intention of the parties to a conveyance of land. The inference is drawn from the circumstances under which the conveyance was made rather than from the language of the conveyance. To draw an inference of intention from such circumstances, they must be or must be assumed to be within the knowledge of the parties. The inference drawn represents an attempt to ascribe an intention to parties who had not thought or had not bothered to put the intention into words, or perhaps more often, to parties who actually had formed no intention conscious to themselves. In the latter aspect, the implication approaches in fact, if not in theory, crediting the parties with an intention which they did not have, but which they probably would have had *16had they actually foreseen what they might have foreseen from information available at the time of the conveyance. In determining implications of this character, the tendency is to isolate and to assign a specific value to such factors as frequently recur. Thus, it may be said that where the factor of necessity exists a particular implication arises. Properly, however, the implication involves a consideration of all the factors present. They are variables rather than absolutes. None can be given a fixed value. Each affects the decision as to the implication arising from all in a different degree in different situations.
Some of the important factors to be considered have been identified by Section 476 of the Restatement as follows:
(a) whether the claimant is the conveyor or the conveyee,
(b) the terms of the conveyance,
(c) the consideration given for it,
(d) whether the claim is made against a simultaneous conveyee,
(e) the extent of necessity of the easement to the claimant,
(f) whether reciprocal benefits result to the conveyor and the conveyee,
(g) the manner in which the land was used prior to its conveyance, and
(h) the extent to which the manner of prior use was or might have been known to the parties.
Thus, each decision must depend on the facts and circumstances surrounding the conveyance separating the larger tract into parts by the common owner. As such, the finding of facts by the trial court assumes great significance. The rule of law suggesting an easement by implication is not to be applied absolutely but must depend on all the circumstances.
Here, the majority finds the inference of an easement to be rebutted by a provision in the agreement by which the *17Burches agreed to convey the tavern property to the Grubbs. This provision was as follows:
Seller hereby grants to Buyer the exclusive privilege of using the additional footage of approximately ten feet (10') on Seller’s residential property as a parking lot. Nothing in this privilege shall interfere with the right of Seller to sell said property provided in such case the Buyer shall be given ten (10) days’ notice to vacate such property.
The terms of the agreement, to be sure, constitute a factor to be considerfed. See: Lerner v. Poulos, supra. However, the trial court’s opinion discloses that the fact finder considered this provision in the agreement of sale but did not consider it sufficient to rebut the inference of an easement by implication from other circumstances.
As a general rule, an agreement of sale merges into the deed conveying the premises. Elderkin v. Gaster, 447 Pa. 118, 288 A.2d 771 (1972); Stoever v. Gowen, 280 Pa. 424, 124 A. 684 (1924). The deed from the Burches to the Grubbs in this case did not contain language similar to that contained in the agreement of sale. Indeed, the deed contained no reference whatsoever to that portion of the paved parking lot which lay to the rear of the grantor’s residence. The trial court concluded, therefore, that the parties’ agreement was insufficient to rebut the inference arising from the circumstances. To hold otherwise would have been to hold subsequent purchasers of the tavern property captive to the terms of the secret, unrecorded agreement of sale between the Burches and the Grubbs.
The parking easement behind the residential property was evidenced by a paved lot which had been used continuously by the patrons of the tavern until parking was rendered impossible by the Boyers. Therefore, the parking easement was open, visible, permanent and continuous. I cannot agree with the majority’s conclusion that the easement was not permanent. In my judgment, a paved parking lot evidences a use of the servient tenement which is every bit as permanent as a paved roadway.
*18I must also disagree with the majority’s conclusion that the record is devoid of evidence of necessity. Absolute necessity is not necessary to the creation of an easement by implication. It is enough “that the easement [be] convenient or beneficial to the dominant estate.” Hann v. Saylor, 386 Pa.Super. 248, 251 fn. 1, 562 A.2d 891, 893 fn. 1 (1989). Here, the parking lot was an adjunct of the tavern, necessary to accommodate the patrons thereof. Parking on the street in front of the tavern had been prohibited by ordinance. This evidence established that the parking lot was necessary to the full enjoyment of the tavern property, which was the dominant estate. I find no basis, therefore, for disturbing the trial court’s finding that the parking lot was necessary in order to properly and economically run the tavern business.
The trial court determined that an easement in the paved parking lot had been created by implication. The majority concludes, however, that the evidence shows nothing more than a license, terminable at the will of the owner of the servient estate. I must respectfully dissent. In my judgment, the evidence was sufficient to support the trial court’s finding that a parking easement was created by implication. Therefore, I would affirm the trial court’s order entering an injunction.