to the Colorado Court of Appeals Court of Appeals Case No.
Attorneys for Petitioners: Polsinelli PC William R. Meyer
Bennett L. Cohen Denver, Colorado
Attorneys for Respondents: The Overton Law Firm Richard J.
Gleason Thomas J. Overton Lakewood, Colorado
GABRIEL JUSTICE does not participate.
JUSTICE delivered the of the Court.
Carole Bishop and Mark Klosky
("Klosky") and Shannon and Keith Love ("the
Loves") own adjacent parcels of land in Denver's
Washington Park neighborhood. Klosky wants to remove a large
tree sitting primarily on Klosky's property and partly on
the Loves' property. The Loves want to keep the tree. Our
seemingly straightforward task is to decide what analytical
framework should govern this garden-variety dispute.
In undertaking this task, we do not write on a clean slate.
Rhodig v. Keck holds that when a tree encroaches
onto a neighbor's land, the tree remains the sole
property of the owner of the land where the tree first grew,
unless the tree was jointly planted, jointly cared for, or
treated as a partition between the two properties. 421 P.2d
729, 731 (Colo. 1966). Any such joint activity implies a
shared property interest. Id. Applying
Rhodig, the lower courts determined that the Loves
cannot prevent Klosky from removing the tree because the
Loves have failed to prove any such shared property interest
in the tree.
If we're unwilling to construe Rhodig in their
favor, the Loves ask us to overrule it and simply hold that a
tree becomes joint property whenever it crosses a property
line. We decline the Loves' invitation in both respects.
As we explain more fully below, we do not construe our
precedent in their favor. And we conclude that there is no
sound legal basis for abandoning Rhodig. After
surveying the early common law on which Rhodig is
premised, we instead clarify that Rhodig governs
"encroachment trees, " which are those that begin
life entirely on one person's property only to migrate
partially to another's. Under Rhodig, a
landowner may remove such a tree without first securing the
approval of his neighbor, unless the landowners jointly
planted, jointly cared for, or treated the trees as a
partition between the properties. Here, the Loves did not
prove such joint activity implying shared ownership of the
encroaching tree. So, Klosky may remove the tree.
Thus, we affirm the judgment of the court of appeals and
remand for further proceedings consistent with this opinion.
Facts and Procedural History
In central Denver's Washington Park neighborhood a
seventy-foot-tall catalpa tree towers over two adjacent
properties. At the base of its trunk, the tree sits roughly
three-quarters on Klosky's property and one-quarter on
the Loves' property. Estimated to be between seventy and
ninety years old, the tree inhabited the lots well before the
parties moved in, and it is unknown who planted it (or
whether it might have simply sprung up as a
"volunteer"). What we do know is that the tree
sheds leaves, seed pods, and branches on both
Unhappy with the debris, Klosky wants to cut the tree down.
The Loves tried to convince Klosky otherwise, but to no
avail. Therefore, the Loves filed a lawsuit seeking a
temporary restraining order ("TRO"), declaratory
judgment, and a preliminary injunction to prevent Klosky from
felling the tree. The parties agreed to a TRO pending the
preliminary injunction hearing, and also agreed to treat that
hearing as a trial on the merits.
The trial court ruled in favor of Klosky, articulating what
it perceived as the test for joint ownership of a boundary
tree in Rhodig: "In addition to proving it
straddles the line, . . . [the Loves have] to prove that the
tree was jointly planted by the property owners or their
predecessors, that it was jointly maintained, or that it was
jointly treated as the boundary."
The trial court made the following factual findings:
• 74% of the tree trunk at its base is on Klosky's
property and 26% of the trunk at its base is on the
• the tree started life on Klosky's land and grew
partly onto the Loves' land;
• the parties did not plant the tree;
• the parties did not jointly maintain the tree in a way
that might reflect "an implicit understanding that the
tree is jointly owned"; and
• the parties did not intend the tree to serve as a
Based on these findings, the trial court concluded that the
Loves had not met their burden of proving that they had a
property interest in the tree. So, it dismissed the
Loves' claims and dissolved the TRO, but then stayed
those orders pending appeal.
On appeal, the Loves contended that (1) the trial court erred
in concluding Klosky and the Loves did not jointly care for
the tree and (2) Rhodig should be overturned. A
division of the court of appeals affirmed the trial court in
a published opinion, Love v. Klosky, 2016 COA 131,
¶ 3, ___ P.3d ___. Because the Loves failed to designate
the relevant trial testimony as part of the record on appeal,
the division determined it had insufficient information to
review the trial court's decision regarding joint care.
Id. at ¶ 12. The division held it was bound by
Rhodig, which it interpreted to mean that
"boundary trees are held as common property only if the
landowners jointly planted, jointly cared for, or treated the
trees as a partition between the properties."
Id. at ¶ 20. The division also declined to
address the Loves' argument, raised for the first time in
the Loves' reply brief, that Rhodig's test
was intended to apply only to trees planted by ...