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