An easement of light and air based on an express grant cannot be lost by lapse of time or nonuse.[i] In, First Nat’l Trust & Sav. Bank v. Raphael,[ii] the court held that, the fact that windows are not used as a source of light do not show an abandonment of the easement. An easement created by a general grant or reservation, without words limiting it to any particular use of the premises, is not affected by a reasonable change in the use of the premises. Substantial change in the dominant estate results in the extinguishment of an express easement of light and air. An easement of light and air attaching to a building as the dominant tenement is extinguished where the building is destroyed or so altered that the easement is no longer possible.[iii]
In, Hennen v. Deveny,[iv] the court held that when the deed creating easement does not limit it to a particular use and there is no change in the building, an easement of light and air is not lost by a change of use of the dominant tenement. However, an easement is lost by the foreclosure of a mortgage on the servient tenement, where the mortgage was executed prior to the creation of the easement.
[i] Hasselbring v. Koepke, 263 Mich. 466 (Mich. 1933)
[ii] 201 Va. 718 (Va. 1960)
[iii] Hopkins the Florist v. Fleming 112 Vt. 389 (Vt. 1942)
[iv] 71 W. Va. 629 (W. Va. 1913)