In the Matter of the Petition of:

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A22-0610

In the Matter of the Petition of:

Herman M. Bacchus and Chandra D. Bacchus
for an Easement by Necessity,
Certificate No. 133675 - Hilden, Certificate No. 86334 - Bacchus.

Filed March 6, 2023
Affirmed
Gaïtas, Judge

Anoka County District Court
File No. 02-CV-18-5778

James A. Reichert, James A. Reichert, LLC, Minneapolis, Minnesota (for appellants
Herman M. Bacchus and Chandra D. Bacchus)

Jessica Hilden, Coon Rapids, Minnesota (self-represented respondent)

Considered and decided by Segal, Chief Judge; Gaïtas, Judge; and Halbrooks,
Judge.
∗
NONPRECEDENTIAL OPINION
GAÏTAS, Judge
Appellants Herman M. Bacchus and Chandra D. Bacchus appeal the district court’s
grant of summary judgment in favor of respondent Jessica Hilden and the dismissal of their
petition for an easement by necessity. They argue that the district court erred in its
application of the law governing implied easements and in granting summary judgment

∗ Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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notwithstanding multiple factual issues. Because we discern no error in the district court’s
application of the law, and the undisputed evidence supports the district court ’s
determination that the doctrine of laches bars the Bacchuses’ easement claim as a matter
of law, we affirm.
FACTS
The Bacchuses petitioned the district court for an easement by necessity to be
memorialized on the certificate of title for tract A, a parcel of land owned by Hilden. They
claimed that an easement was necessary for them to access their landlocked parcel, tract B.
Hilden moved for summary judgment, and the district court granted the motion and
dismissed the Bacchuses’ petition. The relevant facts, presented in the light most favorable
to the Bacchuses, are as follows. See STAR Ctrs., Inc. v. Faegre & Benson, L.L.P., 644
N.W.2d 72, 76-77 (Minn. 2002) (stating that, on appeal from summary judgment, the
appellate court views “the evidence in the light most favorable to the party against whom
summary judgment was granted”).
In August 1997, the Bacchuses received permission from the City of Coon Rapids
to split land they owned into two parcels, now known as tract A and tract B. Tract B is not
accessible by any public or private road. It is surrounded by private, residential properties
and a city lot.
About one year later, in October 1998, the Bacchuses sold tract A. Edina Realty
Title, Inc., represented the Bacchuses in the sale. In connection with the sale, Edina Realty
Title was to ensure that a roadway and utility easement across tract A was recor ded to
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preserve the Bacchuses’ access to tract B. But for reasons that are not in the record, no
easement was recorded on the certificate of title for tract A for the benefit of tract B.
Following the sale of tract A, the Bacchuses moved out of state. In 2002, when they
attempted to sell tract B, they discovered that no easement existed.
Tract A was sold again in June 2003. Again, no easement for the benefit of tract B
was recorded on the certificate of title during the sale.
In September 2016, tract A was sold for a third time—to Hilden. When Hilden
purchased tract A, she had no actual or constructive knowledge of the purported easement.1
Since the 1998 sale of tract A, tract B has been vacant and undeveloped. In October
2018, the Bacchuses petitioned the district court for an easement by necessity. Hilden’s
answer asserted the affirmative defenses of laches and unclean hands.
The district court determined that there was no record evidence that the purported
easement on tract A was ever used as a private roadway, 2 that an easement was “marked
or physically identified in any way,” or that any utilities were installed for the benefit of
tract B. But because tract B is landlocked, the district court determined that “the easement

1 Hilden has since sold tract A to Lacey Jolene Mack. The sale took place after the district
court granted summary judgment in favor of Hilden, but before the Bacchuses filed their
notice of appeal. Following the sale of tract A, Hilden’s appellate attorney withdrew from
representing Hilden in the appeal, and Hilden did not file a responsive brief. Mack , the
new owner of tract A, then moved to substitute as the respondent on appeal. We denied
the substitution motion and directed Mack to formally intervene in the action in order to
participate in the appeal. Mack did not formally intervene and is not a party to this appeal.
The only brief submitted in the appeal was submitted by counsel for the Bacchuses. Thus,
the appeal is submitted for decision under Minnesota Rule of Civil Appellate Procedure
142.03 and is “determined on the merits.”

2 The Bacchuses dispute this finding on appeal and allege that there is a fact issue as to
whether the purported easement was ever used.
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is necessary to the beneficial enjoyment of tract B.” The district court then considered
Hilden’s affirmative defenses. It concluded that the equitable doctrines of laches and
unclean hands applied, and that “equity favors the denial of [the Bacchuses’] claim for an
easement by necessity.” The district court granted Hilden’s motion for summary judgment
and dismissed the Bacchuses’ petition with prejudice. The Bacchuses now challenge the
district court’s decision.
DECISION
A party is entitled to summary judgment if “there is no genuine issue as to any
material fact” and the party is “entitled to judgment as a matter of law.” Minn. R. Civ. P.
56.01. The Bacchuses argue that the district court erroneously granted Hilden’s motion for
summary judgment because the district court misapplied the law governing implied
easements and incorrectly determined there were no factual issues as to the existence of an
easement or Hilden’s affirmative defenses.
Appellate courts review a district court’s decision to grant summary judgment de
novo. Riverview Muir Doran, LLC v. JADT Dev. Grp., LLC, 790 N.W.2d 167, 170 (Minn.
2010); see also Kenneh v. Homeward Bound, Inc., 944 N.W.2d 222, 228 (Minn. 2020).
“In doing so, [appellate courts] determine whether the district court properly applied the
law and whether there are genuine issues of material fact that preclude summary
judgment.” Riverview Muir Doran, 790 N.W.2d at 170.
In considering whether there are genuine issues of material fact, the appellate court
views the evidence in the light most favorable to the nonmoving party, against whom
summary judgment was granted. STAR Ctrs., Inc., 644 N.W.2d at 76-77. “A material fact
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is one of such a nature as will affect the result or outcome of the case depending on its
resolution,” Zappa v. Fahey, 245 N.W.2d 258, 259-60 (Minn. 1976), and inferences and
doubts about material facts are resolved in favor of the nonmoving party, Senogles v.
Carlson, 902 N.W.2d 38, 42 (Minn. 2017). If reasonable persons can draw different
conclusions based on the evidence presented, then a motion for summary judgment should
not be granted. Warren v. Dinter, 926 N.W.2d 370, 375 (Minn. 2019).
This case involves claims for equitable relief. Both the easement sought by the
Bacchuses and Hilden’s affir mative defenses are based on equitable doctrines. See
Magnuson v. Cossette, 707 N.W.2d 738, 746 (Minn. App. 2006) (stating the doctrine of
implied easements, including easements by necessity, is an equitable doctrine); Hebert v.
City of Fifty Lakes, 784 N.W.2d 848, 856 (Minn. App. 2010) (“[L]aches is an equitable
doctrine.” (quotation omitted)). The Minnesota Supreme Court has addressed the standard
of review where, as here, a party has appealed from the grant of summary judgment
“involving claims for equitable relief.” Caldas v. Affordable Granite & Stone, Inc., 820
N.W.2d 826, 837- 38 (Minn. 2012), superseded by statute on other grounds, Minn. Stat.
§ 181.13(a) (2020), as recognized in Hall v. Plainview, 954 N.W.2d 254 (Minn. 2021). In
such cases, “when the relevant facts are undisputed the standard of review is de novo.” Id.
at 838. But, according to the supreme court, “a more deferential abuse of discretion
standard of review might be applicable where the district court, after balancing the equities,
determines not to award equitable relief.” Id.; cf. Melrose Gates, LLC v. Moua, 875
N.W.2d 814, 822 (Minn. 2016) (concluding that a deferential standard of review was not
6
required when the facts were undisputed and the district court decided, without weighing
the equities, that as a matter of law equitable relief was not available). 3
I. The district court did not err in its application of the law of easements by
necessity.

The Bacchuses first argue that the district court erred as a matter of law when it
concluded that there was no easement by necessity because the Bacchuses failed to show
that the purported easement was continuously used before the separation of tracts A and B.
We disagree with the Bacchuses’ characterization of the district court’s order. The district
court correctly identified the applicable law and determined that the law favored an
easement by necessity.
An easement by necessity is a type of implied easement. Lake George Park, L.L.C.
v. IBM Mid-Am. Emps. Fed. Credit Union, 576 N.W.2d 463, 465 (Minn. App. 1998), rev.
denied (Minn. June 17, 1998). To establish a claim for an easement by necessity, a
petitioner must show: “(1) a separation of title; (2) the use which gives rise to the easement
shall have been so long continued and apparent as to show that it was intended to be
permanent; and (3) that the easement is necessary to the beneficial enjoyment of the land
granted.” Id. (quoting Romanchuk v. Plotkin, 9 N.W.2d 421, 424 (Minn. 1943)). Whether

3 We note that it is an open question as to what standard of review applies when a district
court, after determining the facts are undisputed and weighing the equities, grants summary
judgment. See Citizens State Bank v. Raven Trading Partners, Inc., 786 N.W.2d 274, 277
n.2 (Minn. 2010); Melrose Gates, 875 N.W.2d at 820-21 (declining to extend Citizens State
Bank); see also Nadeau v. County of Ramsey, 277 N.W.2d 520, 524 (Minn. 1979)
(“Granting equitable relief is within the sound discretion of the trial court. Only a clear
abuse of that discretion will result in reversal.”). Because we conclude the doctrine of
laches applied as a matter of law, we do not resolve this question today.
7
an easement by necessity exists is determined “at the time of severance.” Clark v. Galaxy
Apartments, 427 N.W.2d 723, 726 (Minn. App. 1988).
The three factors—separation of title, use, and necessity — should not be given equal
weight. See Magnuson, 707 N.W.2d at 745 (“Except for the necessity requirement, these
factors are only aids in determining whether an implied easement existed.”). A district
court should consider all three factors as “ indicia of the parties’ intent to create an
easement,” but may rely on the necessity factor alone to find the existence of an easement
by necessity. Lake George Park, 576 N.W.2d at 465; see also Olson v. Mullen, 68 N.W.2d
640, 647 (Minn. 1955) (“It is not always necessary that the existence of all these essentials
be present.”); Romanchuk, 9 N.W.2d at 426 (“[The factors] are neither ironclad nor
inflexible and yield to manifestation of contrary intention.”).
Here, the district court determined that the record evidence satisfies factors one and
three—separation of title and necessity. But as noted by the Bacchuses, the district court
determined that the evidence does not establish the second factor—use. The district court
stated, “[T]here is no evidence that [the Bacchuses] used the Purported Easement at the
time of separation and there is no evidence of use that has been so long continued and
apparent as to show that it was intended to be permanent.”
The Bacchuses contend that the district court improperly relied on the use factor to
conclude that there was no easement by necessity. They argue that this was a
misapplication of the law, which does not require a petitioner to establish all three factors.
However, we read the district court’s order differently. The district court correctly
identified the three factors and placed paramount importance on the necessity factor. Then,
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the district court concluded that the factors, as applied to the undisputed facts, favored an
easement by necessity. The district court placed particular emphasis on the necessity for
an easement to provide access to tract B, which is landlocked. But, notwithstanding the
district court’s determination that necessity favored an easement, the district court granted
summary judgment and dismissed the Bacchuses’ petition based on Hilden’s affirmative
defenses of laches and unclean hands. Because the district court properly applied the law
to the record evidence in considering whether an easement by necessity exists, we reject
the Bacchuses’ argument that the district court misapplied the law of implied easements.
4
II. The district court did not err in determining that there were no genuine issues
of material fact and in granting summary judgment in favor of Hilden based
on the doctrine of laches.

The Bacchuses next argue that the district court erred in granting summary judgment
because “genuine issues of fact remained disputed” and the district court “errantly
construed certain facts against the [Bacchuses].” They contend that the record evidence
shows there are genuine issues of material fact relevant to (1) their use of the purported
easement and their intent to create an easement, (2) the affirmative defense of laches, and
(3) the affirmative defense of unclean hands. They also argue the district court improperly
weighed evidence when it determined that their petition is barred by the doctrine of laches.
We conclude that the undisputed evidence supports the district court’s grant of summary

4 The Bacchuses also argue that the district court improperly considered whether Hilden
had notice of the easement, asserting that the district court’s order states that the Bacchuses’
failure to use the purported easement “resulted in no notice to [Hilden].” See Magnuson,
707 N.W.2d at 747 (“[N]otice is not a requirement for an easement implied by necessity.
Implied easements, by definition, are not recorded.” (citation omitted)). But the district
court’s order contains no such statement. And we see no mention of the word “notice” in
the order.
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judgment in favor of Hilden based on the doctrine of laches and that the factual issues
alleged by the Bacchuses are not material.
“Laches is an equitable doctrine applied to ‘prevent one who has not been diligent
in asserting a known right from recovering at the expense of one who has been prejudiced
by the delay.’” Winters v. Kiffmeyer, 650 N.W.2d 167, 169 (Minn. 2002) (quoting
Aronovitch v. Levy, 56 N.W.2d 570, 574 (Minn. 1953)). When deciding whether equitable
relief is warranted under the doctrine of laches, the district court must determine “whether
there has been such an unreasonable delay in asserting a known right, resulting in prejudice
to others, as would make it inequitable to grant the relief prayed for.” Monaghen v. Simon,
888 N.W.2d 324, 329 (Minn. 2016) (quotations omitted).
To be unreasonable, the circumstances of the delay must be “blamable.” J ackel v.
Brower, 668 N.W.2d 685, 690-91 (Minn. App. 2003) (quotation omitted), rev. denied
(Minn. Nov. 25, 2003). “Mere delay does not constitute laches,” but if a person knows of
a right to make a claim or could have discovered the right to make a claim with proper
diligence, and fails to take legal action, the doctrine of laches may apply. Id. If there was
unreasonable delay in bringing a claim, a court should next consider whether the delay
caused prejudice. Id. Although evidence of prejudice is “not always essential” to the
defense of laches, it is “a circumstance of importance.” Aronovitch, 56 N.W.2d at 574-75
(quotation omitted).
The district court determined that the Bacchuses’ delay in asserting a claim for an
easement was unreasonable. It noted that the undisputed record evidence shows the
Bacchuses discovered in 2002 that no easement had been recorded, but they waited until
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2018—16 years later— to petition for an easement by necessity. The district court observed
that, within that 16-year period, the original buyers conveyed tract A to new buyers in
2003, and tract A was again conveyed in 2016 when it was purchased by Hilden .
Moreover, according to the district court, due to the Bacchuses’ delay, any claim they may
have had against Edina Realty Title “is now barred by the statute of limitations.” The
district court also determined that the undisputed record evidence established prejudice—
an easement claim would have impacted Hilden’s decision to purchase tract A. Thus, the
district court concluded, “the equitable defense of laches applies to [the Bacchuses’] claim
for an easement by necessity.”
The Bacchuses identify two sets of disputed facts that they contend are relevant to
the laches defense. First, they argue that there are fact questions as to why the easement
was not recorded during the 1998 sale of tract A. They note that their answers to
interrogatories list individuals who were involved in the sale who may have information
about the sale. And they posit that this evidence, construed in the light most favorable to
them, “would provide a good faith basis for the delay, and potentially defeat the laches
claim.”
However, this argument is purely speculative. A party “cannot defeat a summary
judgment motion with unverified and conclusory allegations or by postulating evidence
that might be developed at trial.” Funchness v. Cecil Newman Corp., 632 N.W.2d 666,
672 (Minn. 2001). Furthermore, the reason why an easement was not recorded in 1998 is
not material to the laches analysis. See Zappa, 245 N.W.2d at 259-60 (“A material fact is
one of such a nature as will affect the result or outcome of the case depending on its
11
resolution.”). The salient fact—a fact that counsel for the Bacchuses conceded at oral
argument— is that the Bacchuses learned in 2002 that the easement was not recorded. The
district court’s laches determination is based on the Bacchuses’ failure to act between 2002
and 2018.
Second, the Bacchuses argue there is a genuine issue of material fact as to the
reasons for their delay in petitioning for an easement. But they also admit there is no
evidence in the record about the reasons for their delay. Although the movant must
demonstrate that no genuine issue of material fact exists, “when the moving party makes
out a prima facie case, the burden of producing facts that raise a genuine issue shifts to the
opposing party.” Thiele v. Stich, 425 N.W.2d 580, 583 (Minn. 1988) (discussing Minn. R.
Civ. P. 56). In opposing a motion for summary judgment, the nonmoving party “cannot
rely upon mere general statements of fact but rather must demonstrate at the time the
motion is made that specific facts are in existence which create a genuine issue for trial.”
Hunt v. IBM Mid Am. Emps. Fed. Credit Union, 384 N.W.2d 853, 855 (Minn. 1986). The
Bacchuses cannot rely on a mere assertion that there may be good reason for their delay in
petitioning for an easement. And there is no record evidence explaining their delay. They
have failed to demonstrate that there is any genuine issue of material fact regarding the
reasonableness of their delay in seeking an easement.5

5 Rule 56.04 of the Minnesota Rules of Civil Procedure—which was rule 56.06 until a 2018
reorganization of the rule—allows a party who opposes a motion for summary judgment
to request that the district court deny or continue the motion “on the ground that the non-
moving party should be permitted to conduct additional discovery.” Molde v.
CitiMortgage, Inc., 781 N.W.2d 36, 45 (Minn. App. 2010) (“An affidavit filed pursuant to
rule 56.06 must be specific about the evidence expected, the source of discovery necessary
12
The Bacchuses also contend the district court improperly weighed evidence to
decide that their easement claim is barred by the doctrine of laches. We disagree. In
determining that laches applies, the district court did not weigh evidence. The record
evidence relevant to the doctrine of laches is undisputed. That undisputed evidence shows
that the Bacchuses learned in 2002 that no easement had been recorded, they inexplicably
waited 16 years to petition for an easement, tract A was conveyed multiple times during
that 16-year period, tract A is a residential property, the purported easement is a 20-foot-
wide private driveway that would pass through the front and back yard of tract A to tract
B, and Hilden would not have paid the purchase price for tract A had she known of the
easement claim. The district court then applied the law of laches to the undisputed
evidence. It determined that the Bacchuses’ delay in pursuing an easement was
unreasonable and prejudicial, and accordingly, their easement claim is barred by laches as
a matter of law. Applying de novo review, see Caldas, 820 N.W.2d at 838, we discern no
error in the district court’s decision.
Because we have determined that the district court did not err in finding that the
doctrine of laches bar s the Bacchuses ’ claim for an easement by necessity, we do not
address the Bacchuses’ argument that there are genuine issues of material fact concerning
their petition for an easement by necessity. We also do not reach their challenge to the
district court’s determination that their petition is barred by the doctrine of unclean hands.
Affirmed.

to obtain the evidence, and the reasons for the failure to complete discovery to date.”
(quotation omitted)). The Bacchuses did not file such a motion.