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Love v. Klosky

Court of Appeals of Colorado, First Division

September 8, 2016

Keith Love and Shannon Love, Plaintiffs-Appellants,
v.
Mark Klosky and Carole Bishop, Defendants-Appellees.

         City and County of Denver District Court No. 15CV32088 Honorable Morris B. Hoffman, Judge

          Polsinelli PC, Bennett L. Cohen, William R. Meyer, Denver, Colorado, for Plaintiffs-Appellants

          The Overton Law Firm, Thomas J. Overton, Richard J. Gleason, Lakewood, Colorado, for Defendants-Appellees

          OPINION

          TAUBMAN JUDGE

         ¶ 1 This case presents a novel question of standing: in the case of a tree straddling a boundary line, can the landowner with the larger portion of the tree on his or her property cut it down or can the landowner with the smaller portion of the tree on his or her property insist that the tree remain standing?

         ¶ 2 This appeal involves the competing rights of adjoining landowners - plaintiffs, Keith and Shannon Love (the Loves), and defendants, Mark Klosky and Carole Bishop (the Kloskys) - as to a tree at least seventy years old whose trunk straddles their common boundary.[1] The Kloskys, claiming that the tree is a nuisance, wish to cut it down. The Loves wish to save the tree. The trial court, bound by the one Colorado case on point, Rhodig v. Keck, 161 Colo. 337, 421 P.2d 729 (1966), entered judgment in favor of the Kloskys.

         ¶ 3 Under the majority rule on ownership of boundary trees, neither property owner can cut down a tree that straddles the shared boundary line. Scarborough v. Woodill, 93 P. 383, 383-84 (Cal. Dist. Ct. App. 1907). However, under the minority rule in Rhodig, the landowner of the property where the tree was first planted can cut the tree down, over the other, encroached-on landowner's objections, unless the other landowner can prove that the tree was jointly planted, jointly cared for, or treated as a partition between the properties. 161 Colo. at 340, 421 P.2d at 731. Because, like the trial court, we are also bound by Rhodig, we affirm its judgment.

         ¶ 4 However, we explain why the supreme court may wish to reconsider its holding in Rhodig: (1) Rhodig is the clear minority rule among jurisdictions addressing the issue and (2) the court's opinion in Rhodig was based on a misreading of a Nebraska case on which it relied.

         I. Background

         ¶ 5 As described above, the Loves and the Kloskys are neighbors whose properties share a common boundary. Straddling their mutual property line is a healthy, mature, seventy-foot catalpa tree. Catalpa trees are deciduous trees with large, heart-shaped leaves. In the spring, they produce large white or yellow flowers. In the fall, they bear long fruits that resemble slender bean pods. The tree is seventy to ninety years old.

         ¶ 6 At the ground level, seventy-four percent of the tree's trunk is on the Kloskys' property, and twenty-six percent of the tree's trunk is on the Loves' property. At the four-foot level, eighty-six percent of the tree's trunk is on the Kloskys' property, and fourteen percent of the tree's trunk is on the Loves' property. While the trial court concluded that the tree likely started its growth on the Kloskys' property, the tree has been on or over the property line for at least forty years. Therefore, the tree trunk straddled the property line when Bishop purchased her property in 1986 and when the Loves purchased their property in 2005.

         ¶ 7 The Kloskys wish to cut the tree down because they claim it is a nuisance to rake the tree's leaves and pods. The Loves wish the tree to remain because they claim it provides them with shade, beauty, and comfort and enhances their standard of living and the value of their home.

         ¶ 8 In its bench ruling, the court considered the common law and noted the majority rule. The trial court explained that it wanted to save the tree but, bound by the minority rule in Rhodig, must allow the Kloskys to cut it down:

[T]he law often requires me [to] do things I don't want to do. If I [were] the emperor of Washington Park, I would, I would order this tree not cut down. It's a beautiful tree, it's a great tree. But that's not my role. I'm not the emperor of Washington Park. I have to follow what I think the law is, and my conclusion is that the Loves have not met their burden of proof [under Rhodig] . . . .

         ¶ 9 The court, following Rhodig, concluded that the Loves had not proven that they were tenants in common of the tree. The trial court stayed the effect of its decision pending all appeals.

         ¶ 10 The Loves raise two contentions on appeal: (1) the trial court erred in concluding that they did not jointly care for the tree as required by Rhodig and (2) Rhodig should be reconsidered by the supreme court. We address each contention in turn.

         ¶ 11 The Loves raised a third contention during oral argument - that Rhodig did not create a new exception to the majority common law governing boundary trees because it is not a boundary tree case. However, we conclude that the Loves did not raise this argument before the trial court or in their opening brief, and therefore, we do not address. See Bumbal v. Smith, 165 P.3d 844, 847-48 ...


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