dissenting.
Contrary to the majority, I would affirm. I agree with the trial judge that under the pleadings and evidence in this case, both parties were entitled to the relief granted: plaintiff was entitled to a decree that she was owner of the parcel in dispute, and defendants were entitled to a decree granting them a non-exclusive easement of ingress and egress. There is no need to remand this case for further proceedings.
Plaintiff argues that she would have presented a different case had defendants claimed a prescriptive easement instead of claiming fee title by adverse possession.
For reasons which follow, I do not find this argument persuasive.
It should be emphasized at the outset that plaintiff, not defendants, brought this suit to quiet title to the parcel in issue. In bringing her suit, plaintiff prayed inter alia for a decree as follows:
"2. Determining all adverse claims, if any, of the defendants, and all persons claiming under them.
* * * *
”6. Granting such other relief as may be equitable.”
*207Defendants, by their amended answer, in addition to claiming title to the strip by adverse possession, pleaded a parol agreement to use the strip, acquiescence, estoppel and practical location. Furthermore, defendants prayed for "such other relief as may be equitable”. The relief granted defendants, although a lesser estate in the parcel than sought, was within the general ambit of that prayed for. The evidence offered at trial was substantially the same as would have been offered had defendants been claiming a prescriptive easement. Proof of hostile possession and use is necessary to establish both adverse possession and a prescriptive easement. Plaintiffs contention on appeal that she might have shown that she gave defendants permission to use the disputed strip was equally applicable to both claims. The principal difference between proof of adverse possession and of a prescriptive easement, so far as this case is concerned, is with respect the element of exclusiveness.1 Here the evidence was that defendants’ use of the strip was not exclusive.
At the conclusion of trial, defendants asked to amend their answer to conform the pleadings with the proof and to plead a prescriptive easement. Plaintiff thereupon asked for and was granted a delay of 10 days before the entry of the decree. There is nothing in the record to indicate that the court ever ruled on defendants’ motion to amend, or that plaintiff ever sought to reopen the case and offer any additional evidence to counter the trial court’s announced conclusion that defendants had established a non-exclusive prescriptive easement over plaintiff’s property.2
In a suit in equity, a prayer for general relief authorizes the court in entering a final decree to grant all *208the relief proper to be awarded under the facts proved and the law applicable thereto, regardless of the specific prayers. Katz v. Obenchain, 48 Or 352, 85P 617 (1906), Federici v. Lehman, 230 Or 70, 368 P2d 611 (1962), and Rose v. Rose, 279 Or 27, 566 P2d 180 (1972).
Here the trial judge decreed plaintiff to be the owner of the parcel in dispute. It is a well settled principle of equity that the court may require the plaintiff, as a condition to decreeing the relief asked for, to accord to the defendants whatever equitable rights that defendant may have, even though not demanded by cross bill, and may award defendant that relief to protect and enforce such rights. Brown v. Hassenstab, 212 Or 246, 319 P2d 929 (1958).
Summarizing, plaintiff, having prayed for a decree "[djetermining all adverse claims *** of the defendants’ ***,” should not be heard to complain when the court proceeds to determine those claims. Plaintiff, having elected not to ask to reopen and offer additional evidence should not now be permitted to claim surprise and argue on appeal that she was not given an opportunity to offer additional evidence on the easement issue.
For all of the above reasons, I respectfully dissent.
In Kondor v. Prose, 50 Or App 55, 622 P2d 741 (1981), we said:
«* * * Unlike adverse possession of land, a showing of open continuous use of an alleged easement for a period of ten years creates a presumption that the use is under a claim of right and adverse to the rights of the owner. The owner must then show that the use was made with his permission.” (citations omitted.)
However, after plaintiff filed her appellant’s brief, she filed a motion in the Court of Appeals to supplement the record on appeal by adding a letter which plaintiffs former attorney purportedly sent to defendant Vernon Robinson before the instant suit was ever filed. The motion claimed surprise and prejudice at the *208trial court’s decision; the letter purported to give plaintiff’s consent to ingress and egress to the strip by defendants and one McKee. Defendants immediately opposed that motion, claiming plaintiff had not been surprised by the trial court’s decision. Further, defendants offered their own motion to supplement the record on appeal by adding a purported letter replying to the plaintiffs letter, allegedly rejecting plaintiffs offer of consent to ingress and egress, and claiming title to the strip by adverse possession. Plaintiffs motion to supplement was denied by this court.