(1) Plaintiff's first position rests upon a remark, quoted in the margin, given as an alternative ground of decision in Southern Pine Lumber Co. v. Ward, 1908, 208 U.S. 126, 140-141, 28 S.Ct. 239, 246, 52 L.Ed. 420. Mr. Justice White does not explain what "in the nature of things" prevented the defendants there from asserting both that the attachment under which their title arose was valid and that in any event plaintiff was barred by laches from attacking it. To be sure, when both parties are aggrieved by the same facts and these became known to both at the same time, a defendant's demand for affirmative relief may be logically inconsistent with a claim on his part that the plaintiff is barred by laches from making a similar demand, see, e.g., Steenberg v. Kaysen, 1949, 229 Minn. 300, 39 N.W.2d 18; Charleston Library Society v. Citizens Southern Nat. Bank, 1942, 201 S.C. 447, 23 S.E.2d 362, although even in such a case it would seem that the effect was merely evidentiary and that a defendant ought not be precluded from taking alternative positions, F.R.Civ.Proc. 8(e)(2), 28 U.S.C.A. Moreover, here the circumstances as to the two parties are not parallel. Plaintiff seeks to prevent defendant's use of Polarad in the very areas where that name had been used to plaintiff's knowledge since 1946 or at least since 1950. In contrast, defendant makes no objection to plaintiff's use of Polaroid in the areas of optics, and photography which, so far as defendant knew until the Patent Office interference in 1955, were the only fields where plaintiff employed it. So far as our research has disclosed, the statement in Southern Pine has not been applied by Federal courts in trademark and unfair competition cases; on the contrary, where both sides failed to press their claims after knowledge
Desnick contends, third, that Starkman's counterclaim is barred by laches because from the date of their agreement in 1969 until Starkman purchased Highland Drug Center in February 1972, Starkman asked Desnick only occasionally when he would obtain the stock rather than making a formal demand for it, and because after February 1972 he made no further request for the stock until he brought his counterclaim against Desnick in December 1973. An essential element of laches, however, is that the party asserting it be prejudiced by the delay. Modjeski v. Federal Bakery of Winona, Inc. 307 Minn. 432, 240 N.W.2d 542 (1976); Sanvik v. Maher, 280 Minn. 113, 116, 158 N.W.2d 206, 208 (1968); Lemmer v. Batzli Electric Co. 267 Minn. 8, 15, 125 N.W.2d 434, 439 (1963); Steenberg v. Kaysen, 229 Minn. 300, 310, 39 N.W.2d 18, 23 (1949). The record fails to disclose that Desnick was in any way prejudiced by Starkman's not having brought formal action to enforce the stock transfer contract sooner.
Again, proof which would make that rule applicable in the case at bar is lacking, so the cited cases of Rothman v. Greyhound Corp. (4 Cir.) 175 F.2d 893, and Menendez v. Holt, 128 U.S. 514, 9 S.Ct. 143, 32 L. ed. 526, are not controlling here. Defendant and intervenor cite Steenberg v. Kaysen, 229 Minn. 300, 39 N.W.2d 18, and Lemmer v. Batzli Elec. Co. 267 Minn. 8, 125 N.W.2d 434, in support of their contention that, if both plaintiff and defendant seek affirmative relief against the other, neither can assert the other is guilty of laches. Neither case is applicable here.
Moreover, prejudice must be shown to one party before laches will apply to preclude the other party from a remedy. See, Steenberg v. Kaysen, 229 Minn. 300, 39 N.W.2d 18. Such a showing has not been made. This court has not heretofore been called upon to construe Minn. St. 176.361.
Prejudice to the other party must be shown before laches will apply to preclude a party from a remedy. Steenberg v. Kaysen, 229 Minn. 300, 39 N.W.2d 18. A judgment may be set aside at any time for afterdiscovered fraud upon the court.
"For the reasons expressed, we hold that the certificate of convenience and necessity here challenged was in excess of the commission's power and in direct conflict with the statutory provisions governing the regulation of auto transportation companies." On rehearing we said ( 229 Minn. 300, 40 N.W. [2d] 902): "* * * The certificate here determined invalid, authorized combined rail-truck service by an auto transportation company intended to be regulated under c. 185, but under conditions, methods, tariffs, and rates requiring regulation under statutes governing rail transportation."
A claimant has knowledge of the right to make a claim when the claimant has actual notice of the claim or, in the exercise of proper diligence, ought to have discovered the claim. Steenberg v. Kaysen, 229 Minn. 300, 309, 39 N.W.2d 18, 23 (1949). [L]aches is not, like limitation, a mere matter of time; but principally a question of the inequity of permitting the claim to be enforced, [] an inequity founded upon some change in the condition or relations of the property or the parties. . . . [Laches may be applied] where a court of equity finds that the position of the parties has so changed that equitable relief cannot be afforded without doing injustice, or that the intervening rights of third persons may be destroyed or seriously impaired. . . .
Elsen v. State Farmers Mut. Ins. Co., 219 Minn. 315, 321, 17 N.W.2d 652, 656 (1945) (quotation omitted). A person has knowledge of the right to make a claim when he or she has actual notice of the claim or, in the exercise of proper diligence, ought to have discovered it. Steenberg v. Kaysen, 229 Minn. 300, 309, 39 N.W.2d 18, 23 (1949). Here, the district court concluded that the laches doctrine applied because the record demonstrated "unreasonable delay and prejudice."
A person has knowledge of the right to make a claim when he or she has actual notice of the claim or, in the exercise of proper diligence, ought to have discovered it. Steenberg v. Kaysen, 229 Minn. 300, 309, 39 N.W.2d 18, 23 (1949). The district court determined that the doctrine of laches does not apply because the Jackels did not know about the violation when the facility was built and exercised due diligence to discover the violation.
In order to prove laches, the person asserting the defense must show inexcusable delay in asserting a right and that the delay caused undue prejudice to the party asserting laches. See Funchie v. Packaging Corporation of America, 494 F. Supp. 662, 666 (D.Minn. 1980); Steenberg v. Kaysen, 229 Minn. 300, 309-10, 39 N.W.2d 18, 23 (1949). Harding's failure to request a hearing until more than two years after the agreed upon time was inexcusable delay.