Substantial change in the dominant estate results in the extinguishment of an express easement of light and air.  In, Hopkins the Florist v. Fleming,[i] plaintiff and defendant were owners of adjoining parcels of land.  The deed of ownership from a common grantor contained the easement that nothing obstructs plaintiff’s view of a certain street. The defendants made some remodeling to the house constructed on his land and made it into a two family tenement and used the same sewer for both houses.  Plaintiff contended that defendant has no enforceable easement of view over premises owned by the plaintiff and the use of the pipe by more than one family is in excess of the right of use acquired by prescription.  The court held that, the owner of an easement could not materially increase the burden of the easement on the servient estate, nor impose a new or additional burden thereon.  By using the sewer for both the houses, the defendant has not materially increased the use of the pipe.  But, since the defendant moved the grantor’s house from its location, the easement of view is extinguished.  A substantial change in the dominant estate results in the extinguishment of an easement of light and air as where the building to which such an easement is attached has ceased to exist.  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.

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.  In, Hennen v. Deveny,[ii] the common grantor conveyed the dominant parcel to the trustees of a church and the deed included a covenant that no building would be erected on any part of the land surrounding that parcel, within 10 feet of the parcel.  The dominant parcel, a church, was converted into a business building without changing windows.  Plaintiff dominant parcel owner sued defendant servient parcel owner from erecting a building within 10 feet of the line of the dominant owner’s lot.  The court held that, the deed does not limit the duration of the easement.  The covenant is appurtenant to the dominant parcel and passed by the deed of the trustees to the dominant owner.  The purpose of the covenant is to give light and air, which continued to be beneficial to the dominant parcel.  Also the easement passed by a conveyance, is not extinguished by the conversion of the church building into a business house. 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] 112 Vt. 389 (Vt. 1942)

[ii] 71 W. Va. 629 (W. Va. 1913)