The trial court found that the city had acquired such an easement and one of the defendant property owners appeals. Since this is in the nature of a suit in equity, our review is de novo. Port of Portland v. Maxwell, 9 Or. App. 105, 110, 496 P.2d 23 (1972). The issues raised by the assignments of error are the following: (1) whether there was a material variance between the complaint and the proof at trial, (2) whether a municipal corporation can acquire an easement by prescription, and (3) whether the City of Ashland acquired a prescriptive easement across defendants' properties.
We find that, together with that of the registered land surveyor called by them, Mr. Peterson, and verified by Mr. Allison, a lifetime neighbor and the contract logger who ran the northern boundary and observed both the line markers and the fences on the property, and particularly the pipe marking the northeast corner put in by Mr. Gatewood, plaintiffs provided the clear and positive evidence which the law requires. Winthers v. Bertrand, 239 Or. 97, 396 P.2d 570 (1964); Port of Portland v. Maxwell, 9 Or. App. 105, 496 P.2d 23 (1972). It also established that the adverse possession was open, adverse, notorious and exclusive. Du Val et ux v. Miller, 208 Or. 176, 300 P.2d 416 (1956); Port of Portland v. Maxwell, supra.
See ORCP 2. Declaratory judgment proceedings "may be equitable or legal in character depending upon the nature of the proceeding." See Port of Portland v. Maxwell, 9 Or. App. 105, 111, 496 P.2d 23 (1972). In Yaquina Bay Timber v. Shiny Rock Mining, 276 Or. 779, 781 n 1, 556 P.2d 672 (1976), the court said:
A declaratory judgment proceeding may be legal or equitable in character. Kuhn v. Heerwagen, 43 Or. App. 755, 757 n 1, 604 P.2d 416 (1979). If it is equitable, we review de novo. ORS 19.125(3). If it is legal, we must affirm the judgment of the trial court if there is any evidence to support it. Port of Portland v. Maxwell, 9 Or. App. 105, 111, 496 P.2d 23 (1972). The parties agree in their briefs that this declaratory judgment proceeding is essentially equitable.
Plaintiff sought neither damages nor ejectment of defendants. A claim of prescriptive easement, whether for public or private use, is in the nature of an equitable claim. Thompson v. Scott, 270 Or. 542, 528 P.2d 509 (1974); Williams v. Harrsch, 58 Or. App. 301, 648 P.2d 386 (1982), rev'd on other grounds 297 Or. 1, 681 P.2d 119 (1984); City of Ashland v. Hardesty, 23 Or. App. 523, 543 P.2d 41 (1975), rev den (1976); Port of Portland v. Maxwell, 9 Or. App. 105, 496 P.2d 23 (1972). The court also found that this road was a public way by implied dedication.
A suit for declaratory judgment may be regarded as being equitable or legal in character depending upon the nature of the proceeding. Port of Portland v. Maxwell, 9 Or. App. 105, 496 P.2d 23 (1972). We would characterize plaintiff's action as being more legal than equitable in character.