X granted D a lease but reserved to himself he right to deal with all elements of the property as he saw fit. D often needed the back court and gate to receive deliveries for business but when X granted freehold to P, P denied D any right to use the back court or gate, as D had been doing for many years. The court denied that D had any easement arising from s.62. Since the use of access had always been subject to the exigencies of P/X’s business, there could not have been a grant of legal right.
Cross J: In considering whether the user was such that section 62 would operate, it was not right to look solely at the user at the moment of the grant of the existing lease, but the court ought to look at the facts over a reasonable period of time before the date of the grant in question.