OPINION OF THE COURT
STAHL, Circuit Judge.
This is an appeal from a judgment in a diversity suit brought by an owner of land against a Delaware municipal corporation.1 Plaintiff-appellee, Ethel C. Deakyne, a citizen of Pennsylvania, brought this action to recover damages caused by an alleged trespass by appellants, the Commissioners of Lewes, the Board of Public Works and others (hereinafter sometimes referred to as Town), when they caused a sewer line to be installed in 1962 under a roadway which traversed a parcel of land appellee then owned in Lewes. Deakyne claimed that the road was part of her property and that the sewer line interfered with possible commercial exploitation of the property as a marina, resulting in a decrease in its market value.
The key issue in this appeal is whether the district court erred in refusing to include in its charge to the jury an instruction on a Delaware stat[292]*292ute,2 which appellants now claim to constitute a complete legal defense to the alleged trespass. In order to better comprehend the ultimate basis for the lower court’s refusal to charge on the statute, it is necessary to relate the course of the litigation by reference to the pleadings, the pretrial proceedings, and the trial:
I. In paragraph 10 of their answer to the complaint, labeled “AFFIRMATIVE DEFENSE,” appellants asserted:
10. In or about the year 1937, the aforementioned Anglers Road was constructed by the Commissioners of the Town of Lewes with public funds as and for a public road and the same has been continuously in use as a public road from 1937 to the present and has at all times been maintained through the use of public funds as a public road. Appendix (App.) 7a.
The district court recognized that,
While the answer did not expressly mention 17 Del.C. § 509, its language brought the defense within the terms of the statute. In effect, the answer pleaded the statute. 44 F.R. D. at 426.3
II. The original pretrial order of May 10, 1967, submitted by the parties, contained, inter alia, the following points:
ISSUES OF LAW TO BE LITIGATED
1. May a municipality acquire title by adverse possession to a road ?
2. Was Anglers Road subject to an easement in the general public by virtue of a prescriptive right?
******
(App. 24a.)
III. During the pretrial conference conducted the same day, May 10, 1967, the following colloquy took place between the court and counsel for the Town:
THE COURT: * * *
The defendant concedes that if plaintiff is right in its contention [“that as a matter of law a municipality cannot acquire title to land by adverse possession” App. 20a], then the defense of adverse possession must fall.
Then I am going to talk about your second theory of defense. We have talked about adverse possession. Now what is your alternate theory?
MR. RAYSOR: Your Honor, it is not really a legal defense by way of justifying the laying of the sewer line. As I say, it goes more to the question of damages.
THE COURT: Now, let me stop you here. Then you have simply one defense, and that is adverse possession.
MR. RAYSOR: Yes.
THE COURT: All right. Put that down. The only defense to liability which the defendant asserts is that of adverse possession. * * * (App. 21a.)
IV. As a result of the pretrial conference, a supplemental pretrial order was entered on the first day of the trial, May 15, 1967, providing, inter alia, as follows:
I. AS TO THE ISSUE OF LIABILITY
******
D. The defendants assert title in the Town of Lewes as the only defense and, in spite of the claim of the plaintiff to record legal title, the Board of Public Works bases its right to construct the sewer under the bed of Anglers Road on the theory that when the sewer line was constructed, the Town of Lewes was the owner of Anglers Road where the [293]*293line was located by virtue of adverse possession arising from its open, notorious, exclusive and hostile exercise of dominion over the same under a claim of right.
E. The plaintiff asserts that as a matter of law, a municipality cannot acquire title to private land by adverse possession.
F. The defendants concede that if a municipality cannot acquire title to private land by adverse possession, then the defense of adverse possession must fall. App. 28a-29a.
The supplemental pretrial order stated further, under the caption “AS TO DAMAGES”:
B. The defendants assert that the public acquired an easement over Anglers Road through twenty years uninterrupted use under a claim of right and that this prescriptive right would prevent interference by the plaintiff with Anglers Road under which the sewer line is laid. App. 29a.
V. During the second day of the trial, after the appellee had rested and the Town had begun to present its case, the court called counsel for the parties into conference in chambers when an objection was made to proffered testimony showing the use of public funds to maintain the road. App. 32a. At this conference the trial judge called to the attention of the parties the provisions of 17 Del.C. § 509,4 relating to the creation of public roads by public user and maintenance.
The trial judge indicated he was not certain what significance the statute had but that he thought “it ought to be considered.” Counsel for appellee countered that he was “familiar with that act” and that it “has nothing to do with the situation at hand” because it “pertains to dedication, and most of the cases — I would say all the cases there are cases where a plot plan has been recorded and laid out, and so forth.” (App. 33a-34a.)
Counsel for the Town remained silent during this discussion.
VI. The trial then continued with the presentation of further' evidence by appellants, including testimony by present and former employees of the Town as to the public use and public maintenance of the road, the kind of evidence which would seem to fit the requisite elements of 17 Del.C. § 509. Appellee’s counsel objected to the testimony, not expressly on the ground that it related to a different theory than adverse possession, but primarily because there was no showing of “corporate action” on the part of the Town [294]*294authorizing the maintenance of Anglers Road with public funds. (App. 33a, 47a-48a.) The other objection to this line of testimony was the reiteration of appellee’s position that a public body may not constitutionally acquire private property by adverse possession. (App. 48a.) The testimony was admitted over appellee’s objection. (Trial Transcript 257-258.)
VII. At the close of the evidence, in the afternoon of May 17, 1967, the trial judge called counsel for the parties into chambers for a conference on the prayers, or instructions, to the jury. The court again queried counsel as to whether 17 Del.C.
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OPINION OF THE COURT
STAHL, Circuit Judge.
This is an appeal from a judgment in a diversity suit brought by an owner of land against a Delaware municipal corporation.1 Plaintiff-appellee, Ethel C. Deakyne, a citizen of Pennsylvania, brought this action to recover damages caused by an alleged trespass by appellants, the Commissioners of Lewes, the Board of Public Works and others (hereinafter sometimes referred to as Town), when they caused a sewer line to be installed in 1962 under a roadway which traversed a parcel of land appellee then owned in Lewes. Deakyne claimed that the road was part of her property and that the sewer line interfered with possible commercial exploitation of the property as a marina, resulting in a decrease in its market value.
The key issue in this appeal is whether the district court erred in refusing to include in its charge to the jury an instruction on a Delaware stat[292]*292ute,2 which appellants now claim to constitute a complete legal defense to the alleged trespass. In order to better comprehend the ultimate basis for the lower court’s refusal to charge on the statute, it is necessary to relate the course of the litigation by reference to the pleadings, the pretrial proceedings, and the trial:
I. In paragraph 10 of their answer to the complaint, labeled “AFFIRMATIVE DEFENSE,” appellants asserted:
10. In or about the year 1937, the aforementioned Anglers Road was constructed by the Commissioners of the Town of Lewes with public funds as and for a public road and the same has been continuously in use as a public road from 1937 to the present and has at all times been maintained through the use of public funds as a public road. Appendix (App.) 7a.
The district court recognized that,
While the answer did not expressly mention 17 Del.C. § 509, its language brought the defense within the terms of the statute. In effect, the answer pleaded the statute. 44 F.R. D. at 426.3
II. The original pretrial order of May 10, 1967, submitted by the parties, contained, inter alia, the following points:
ISSUES OF LAW TO BE LITIGATED
1. May a municipality acquire title by adverse possession to a road ?
2. Was Anglers Road subject to an easement in the general public by virtue of a prescriptive right?
******
(App. 24a.)
III. During the pretrial conference conducted the same day, May 10, 1967, the following colloquy took place between the court and counsel for the Town:
THE COURT: * * *
The defendant concedes that if plaintiff is right in its contention [“that as a matter of law a municipality cannot acquire title to land by adverse possession” App. 20a], then the defense of adverse possession must fall.
Then I am going to talk about your second theory of defense. We have talked about adverse possession. Now what is your alternate theory?
MR. RAYSOR: Your Honor, it is not really a legal defense by way of justifying the laying of the sewer line. As I say, it goes more to the question of damages.
THE COURT: Now, let me stop you here. Then you have simply one defense, and that is adverse possession.
MR. RAYSOR: Yes.
THE COURT: All right. Put that down. The only defense to liability which the defendant asserts is that of adverse possession. * * * (App. 21a.)
IV. As a result of the pretrial conference, a supplemental pretrial order was entered on the first day of the trial, May 15, 1967, providing, inter alia, as follows:
I. AS TO THE ISSUE OF LIABILITY
******
D. The defendants assert title in the Town of Lewes as the only defense and, in spite of the claim of the plaintiff to record legal title, the Board of Public Works bases its right to construct the sewer under the bed of Anglers Road on the theory that when the sewer line was constructed, the Town of Lewes was the owner of Anglers Road where the [293]*293line was located by virtue of adverse possession arising from its open, notorious, exclusive and hostile exercise of dominion over the same under a claim of right.
E. The plaintiff asserts that as a matter of law, a municipality cannot acquire title to private land by adverse possession.
F. The defendants concede that if a municipality cannot acquire title to private land by adverse possession, then the defense of adverse possession must fall. App. 28a-29a.
The supplemental pretrial order stated further, under the caption “AS TO DAMAGES”:
B. The defendants assert that the public acquired an easement over Anglers Road through twenty years uninterrupted use under a claim of right and that this prescriptive right would prevent interference by the plaintiff with Anglers Road under which the sewer line is laid. App. 29a.
V. During the second day of the trial, after the appellee had rested and the Town had begun to present its case, the court called counsel for the parties into conference in chambers when an objection was made to proffered testimony showing the use of public funds to maintain the road. App. 32a. At this conference the trial judge called to the attention of the parties the provisions of 17 Del.C. § 509,4 relating to the creation of public roads by public user and maintenance.
The trial judge indicated he was not certain what significance the statute had but that he thought “it ought to be considered.” Counsel for appellee countered that he was “familiar with that act” and that it “has nothing to do with the situation at hand” because it “pertains to dedication, and most of the cases — I would say all the cases there are cases where a plot plan has been recorded and laid out, and so forth.” (App. 33a-34a.)
Counsel for the Town remained silent during this discussion.
VI. The trial then continued with the presentation of further' evidence by appellants, including testimony by present and former employees of the Town as to the public use and public maintenance of the road, the kind of evidence which would seem to fit the requisite elements of 17 Del.C. § 509. Appellee’s counsel objected to the testimony, not expressly on the ground that it related to a different theory than adverse possession, but primarily because there was no showing of “corporate action” on the part of the Town [294]*294authorizing the maintenance of Anglers Road with public funds. (App. 33a, 47a-48a.) The other objection to this line of testimony was the reiteration of appellee’s position that a public body may not constitutionally acquire private property by adverse possession. (App. 48a.) The testimony was admitted over appellee’s objection. (Trial Transcript 257-258.)
VII. At the close of the evidence, in the afternoon of May 17, 1967, the trial judge called counsel for the parties into chambers for a conference on the prayers, or instructions, to the jury. The court again queried counsel as to whether 17 Del.C. § 509 was relevant, and this time the trial judge appeared to take the lead in attempting to convince the parties that the statute was applicable to the facts here. (App. 54a-57a.) Appellee’s counsel again claimed the statute was not applicable, contending that it required an initial dedicar tion, evidently meaning a dedication by the private owner of the land not formally accepted by the public body.
This time counsel for the Town commented on the Act, replying to the trial judge that he knew of no reason why it should not be applied, and stating further,
I have intended to ask instruction on it, your Honor. I first had to get the evidence of the maintenance at public funds in. (App. 56a.) 5
The court then recessed the conference and asked the parties to research the question for later consideration.
After the conference resumed the same day, the trial judge informed counsel that he would charge on the statute, even setting forth the exact language he proposed to use after giving the text of the statute:
If you find, members of the jury, that the portion of Marsh Road between Market Street and the Anglers Association Restaurant or the Anglers Restaurant has been used and maintained at the public charge for 20 years or more, you may find it to be a common highway. But if you fail to find that such road has been used and maintained at the public charge for 20 years or more, you may not find it to be a public highway. (App. 58a.)
Counsel for appellee strenuously reiterated his position that the statute was inapplicable. For the first time, he argued that the Town was interjecting into the case a statutory defense and a new legal theory different from adverse possession. This began to sway the trial court in the opposite direction, because of the sole defense of adverse possession specified in the supplemental pretrial order and the failure of appellants to assert the statute specifically until the end of the trial. Counsel for the Town then proposed that the pleadings be amended to conform to the evidence, explaining that the statute was not pleaded sooner because counsel was not certain until after the entry of the supplemental pretrial order that he had a witness who could testify as to the public maintenance of Anglers Road.5 6 By the end of the May 17, 1967 conference, the trial judge had decided not to charge the jury on the statute. (App. 58a-71a.)
On the following morning, appellants’ counsel made a formal application “to amend the answer to conform to the evidence by pleading the provisions of” 17 Del.C. § 509. After further discussion between court and counsel, the motion for leave to amend was denied. (App. 72a-77a.)
In the charge the court referred only to the principle of adverse possession as the Town’s legal defense. (App. 78a-79a.)
[295]*295VIII. The jury rendered a' verdict for appellee in the amount of $16,000 in compensatory damages and $600 in punitive damages. (App. 80a.)
IX. The Town moved for a new trial, claiming that the district court erred in refusing to permit an amendment to the pleadings to conform to the evidence. (App. 81a). The motion was denied.
The court declined to grant a new trial on the ground that the statement in the supplemental pretrial order that the Town’s only defense would be adverse possession “was tantamount to an abandonment of the statutory defense which defendants had initially pleaded.” 44 F.R.D. at 427.7
The district court proceeded to explain that as a result of the Town’s reticence in recognizing the applicability of the Delaware statute until after the end of the trial, coupled with the supplemental pretrial order entered on the first day of the trial, “[i]t is reasonable to conclude, in light of this combination of circumstances, that the defendants relinquished or abandoned their right to plead the defense. * * * ” 44 F.R.D. at 428.
Although we are in sympathy with the lower court’s probable exasperation at the Town counsel’s
Each time the trial judge suggested the applicability of 17 Del.C. § 509, counsel for appellee stalwartly claimed that the statute did not apply.9 He [296]*296argued that the statute related only to instances where there had been an actual dedication of a road followed by twenty years public user and maintenance.
We have carefully examined all of the cases cited in support of this proposition by appellee and have made an independent search of the Delaware decisions dealing with the etablishment of public roads.
We have found no reported case which holds that 17 Del.C. § 509 applies only where there has been a prior dedication.
Some of the cases referred to by appellee conclude that where there is an attempted dedication not formally accepted by the public authorities, acceptance may be inferred from a specified period of public user. Kelly v. Phillips, 13 Del.Ch. 261, 118 A. 230 (1922); Reinhardt v. Chalfant, 12 Del.Ch. 214, 110 A. 663 (1920), aff’d, 12 Del.Ch. 389, 113 A. 674 (1921). But this does not mean that the statute also requires an unaccepted dedication before its public user and maintenance provisions become operative. In our view the statutory language leads unambiguously to an opposite conclusion.
Implicit in Biggs v. Wolfe, 40 Del.Ch. 212, 178 A.2d 482 (Del.Ch.1962), cited by both parties, is the conclusion that in the absence of dedication, a public road may be established by public user and maintenance under the foregoing statute. The court having determined in Biggs that there was insufficient evidence of the requisite public user, there was no need to go into the question of whether the element of maintenance for twenty years or more was present. 178 A.2d at 484. See also Reinhardt v. Chalfant, supra, 110 A. at 666, which held that an earlier version of this statute “does not apply to roads created by private dedication.”10
As the district court recognized during one of the conferences in chambers, a fair reading of the statute demonstrates that the establishment of a public road by twenty years public user and maintenance is an alternative to the formal laying out of the road by dedication or otherwise and is not a requirement in addition to dedication. (App. 54a-56a.) In other words, under the statute public user and maintenance constitute a substitute for dedication.11
[297]*297Since we have determined that the statute under consideration offered the Town a sufficient legal defense to the charge of trespass, assuming the jury would have been satisfied that the necessary period of public user and public maintenance had been proven, the question remains whether appellants waived their right to resort to the statute by their reliance on adverse possession at pretrial and by their failure to assert the statute until the end of the trial.
Even though paragraph 10 of appellants’ original answer was sufficiently broad to raise the statute as a defense, the apparent abandonment of this defense at pretrial probably made it necessary for the Town, if it wished to resurrect this defense, to seek an amendment to the answer.12
[298]*298We believe that under the liberal policy which characterizes the allowance of amendments under F.R.C.P. 15(b),13 the district court should have granted leave to amend here, and that it was error not to do so. It is true, as indicated by the district court in its opinion, 44 F.R.D. at 427, that under the language of the first part of Rule 15 (b) amendments to the pleadings to conform to the evidence may be made, or may be considered to have been made, “when issues not raised by the pleadings are tried by express or implied consent of the parties.” The court concluded that this portion of the Rule was inapplicable because counsel for appellee had objected to the testimony of the public maintenance of Anglers Road, although as previously indicated it is not entirely clear that the objection was predicated on the attempt to interject a new issue or theory of defense into the case.
At any rate, the second part of Rule 15(b) 14 could have been, and, in our view, should have been invoked:
-* * * if evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be sub-served thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence. 28 U.S.C.A.15
[299]*299Professor Moore has succinctly summarized the purpose, effect and applicable standards of this portion of the Rule:
The second portion of Rule 15(b) has to do with the situation that arises where there is objection to the introduction of evidence at the trial on the ground that it is not within the issues made by the pleadings. The court may permit the pleadings to be amended in its discretion, and amendment is to be freely allowed in order to aid in the presentation of the merits of the controversy, if the opposing party is not actually prejudiced. The party opposing the amendment should not succeed by arguing a technical change in the “cause of action” or “defense,” since that merely means “legal” and not “actual” surprise. He must show that he would be prejudiced in maintaining his action or defense on the merits by the admission of the evidence. Even if he does show that he is not prepared, and could not have been expected, to meet the evidence offered, the court may still permit the amendment, and grant a continuance to enable the objecting party to meet such evidence. Normally a court should, in such a situation, permit the amendment and grant a continuance where the person seeking the amendment has been, and is, acting in good faith, since the court can assess costs against the party at fault. This done, the amendment is usually in furtherance of justice and therefore required by the rules.16 [Footnotes omitted.] 3 Moore, supra note 12 at j[ 15.14.
We are not persuaded that appellee has shown such prejudice as to warrant a denial to the Town of the right to amend its answer, if such amendment is necessary, or to deny the Town’s belated request for a charge on the statute.17 Counsel for appellee obviously was fully aware of the statute and objected to its introduction into the case mainly on legal grounds. A continuance under Rule 15(b) would have enabled appellee to meet the evidence in support of the elements of 17 Del.C. § 509 presented by the Town. A new trial will afford appellee the same opportunity to challenge the public user and public maintenance of Anglers Road for the period required under the statute.
[300]*300Appellee is prejudiced, of course, in that she gained a verdict which is now being reversed. But this is not the kind of prejudice contemplated by Rule 15(b).18 Prejudice under the rule means undue difficulty in prosecuting a lawsuit as a result of a change of tactics or theories on the part of the other party.19 We believe that any prejudice of this nature, even if present here, is minimal and may be readily relieved by the new trial to be afforded to the parties.
We should make it clear that we are not deciding that the evidence presented by the Town was sufficient to meet the requirements of 17 Del.C. § 509. We hold only that since appellants did present testimony to support a statutory defense the district court believed directly relevant, the Town should have been given the opportunity to plead the statute and the jury should have been instructed on its applicability, with proper protection to the rights of appellee to challenge the evidence.
For the reasons heretofore set forth, the decision of the district court will be reversed and a new trial ordered.
. The Town’s trial counsel is not appellants’ counsel in this appeal.