An easement may be implied or express.  An express easement may be “granted” or “reserved” in a deed or other legal instrument.  Under the common law, the owner of a land has no legal right to the light and air unobstructed from the adjoining land in the absence of an easement[i].  Thus, an easement of light and air is acquired by express grant[ii].

Easements of light and air may be created by words of covenant as well as by words of grant[iii].  Courts have consistently held that there is no private right to a view without an express easement[iv].  Restrictions in deeds or covenants with respect to light and air will be in the nature of negative easements.

No American common law jurisdiction recognizes a landowner’s right to acquire an easement of light by prescription[v].

In Wisconsin, it is recognized that an owner of land does not have an absolute or unlimited right to use the land in a way which injures the rights of others.  When one landowner’s use of his/her property unreasonably interferes with another’s enjoyment of his/her property, it becomes a private nuisance[vi]

Similarly, in Pennsylvania an easement to light and air cannot be acquired by prescription.  However, an easement to light and air can be acquired by express grant[vii].

[i] Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc., 114 So. 2d 357 (Fla. Dist. Ct. App. 3d Dist. 1959)

[ii] Maioriello v. Arlotta, 364 Pa. 557 (Pa. 1950).

[iii] Homewood Realty Corp. v. Safe Deposit & Trust Co., 160 Md. 457 (Md. 1931)

[iv] Bubis v. Kassin, 323 N.J. Super. 601 (App.Div. 1999)

[v] Prah v. Maretti, 108 Wis. 2d 223

[vi] Id

[vii] Maioriello v. Arlotta, 364 Pa. 557 (Pa. 1950).