concurring in part and dissenting in part.
I agree with all of the majority opinion except for its treatment of the award to defendant of damages for the conversion of his photographic equipment. I agree that he has failed to establish that plaintiff converted that equipment. What the majority refuses to recognize, however, is that the court and the parties did not in fact try a claim for conversion; rather, what they tried under that label was in reality a claim for trespass to chattels. The evidence supports the judgment under that theory, and we should affirm it.
We recently noted that trespass to chattels is the “ little brother of conversion,’ ” which applies to interferences with the possession of chattels that are not sufficiently important to be classified as conversion. Morrow v. First Interstate Bank, 118 Or App 164, 168, 847 P2d 411, rev dismissed 317 Or 580, 858 P2d 448 (1993), quoting Prosser and Keeton on Torts 86 (5th ed 1984). That comment is consistent with the Supreme Court’s recognition in Mustola v. Toddy, 253 Or 658, 664 n 4, 456 P2d 1004 (1969), that there is a strong argument for abolishing the distinction between conversion and other types of interference with personal property, including trespass to chattels. Indeed, in a later case Justice O’Connell, the author of Mustola, asserted that the adoption of the balancing test of Restatement (Second) of Torts § 222A (1958) essentially achieved that result. In Justice O’Connell’s view, the court should treat any actionable interference with a chattel as a trespass, with the measure of damages dependent on the nature and extent of the interference. Remington v. Landolt, 273 Or 297, 317-18, 541 P2d 472 (1975) (O’Connell, C. J., concurring).
Defendant labeled his claim “conversion” rather than “trespass to chattels” and has not referred to a trespass theory either at trial or on appeal. However, his allegations, and the evidence at trial, were as relevant to a trespass claim as to a conversion claim. The damages that he sought and that the court awarded were more appropriate to trespass than to conversion.1 In Oregon a pleader does not plead a *170legal theory; a pleader alleges facts. ORCP 18; Gabel v. Armstrong, 88 Or 84, 90, 171 P 190 (1918); Hanna v. Hope, 86 Or 303, 308-09, 168 P 618 (1917). The court evaluates the facts to determine whether they entitle the pleader to relief on any legal theory. “While a claim for relief may fail to plead a specific theory, it should not be dismissed if it pleads a claim for relief under some theory, even if it was not the one the plaintiff intended.” Sheets v. Knight, 308 Or 220, 232, 779 P2d 1000 (1989) (emphasis supplied). In the same way, an issue that is not in the pleadings will support a judgment if the parties tried it by consent without the necessity of amending the pleadings. ORCP 23 B.
In the circumstances of this case we should treat defendant as having asserted a claim for trespass to chattels in the alternative to the conversion claim. The issues that defendant raised, the evidence that the parties presented, and the damages that the court awarded are all better suited to a trespass claim than to one in conversion. The gist of the tort is the disturbance of defendant’s possession of the equipment, and the damages that the court awarded are ones that may flow from that disturbance, including defendant’s loss of use of the equipment. See W. L. Hughson Co. v. Northwestern Nat. Bk., 126 Or 43, 47, 268 P 756 (1928).
Treating the claim as one in trespass would not be inconsistent with Jordan v. Wilhelm, 95 Or App 528, 770 P2d 74, rev den 308 Or 79 (1989), in which the plaintiff based his claim solely on conversion and, we pointed out in a footnote, did not sue for trespass to chattels. 95 Or App at 530 n 1. As a result of the way that the plaintiff brought the case, we decided only the conversion claim. However, in Jordan the plaintiff had lost at trial, so that treating the claim as one for trespass to chattels could have led to reversing a judgment that the defendants obtained on the basis of the issues as the plaintiff framed them. Here, treating defendant’s conversion *171claim as including a claim for trespass to chattels could result in affirming a judgment that defendant obtained after a trial in which the legal and factual issues were such that we can be certain that the evidence and the result would have been no different if that had been the express issue.
The majority’s decision elevates form over substance and ignores the reality of what happened in this case. For that reason, I dissent from its reversal of the damages on the “conversion” claim.
The normal measure of damages in a conversion claim is the reasonable market value of the property at the time of the conversion. Lanz v. Douglas Tool & *170Engineering, Inc., 138 Or App 89, 92, 907 P2d 1128 (1995). When the plaintiff regains possession of the converted property before the trial, the measure of damages is the value of the property at the time of the conversion less its value at the time of the return. See W. L. Hughson Co. v. Northwestern Nat. Bk., 126 Or 43, 47, 268 P 756 (1928); Lee Tung v. Burkhart, 59 Or 194, 205, 116 P 1066 (1911). The trial court, however, based its damage award not on the value of the property but on defendant’s lost profits and loss of use, which are more appropriate to a trespass claim.