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Love v. Klosky

Supreme Court of Colorado

March 19, 2018

Keith Love and Shannon Love, Petitioners
v.
Mark Klosky and Carole Bishop.Respondents

         Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 15CA1505

          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.

          OPINION

          HOOD JUSTICE delivered the of the Court.

         ¶1 Carole Bishop and Mark Klosky ("Klosky")[1] 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.

         ¶2 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.

         ¶3 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.

         ¶4 Thus, we affirm the judgment of the court of appeals and remand for further proceedings consistent with this opinion.

         I. Facts and Procedural History

         ¶5 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 properties.[2]

         ¶6 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.

         ¶7 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."

         ¶8 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 Loves' property;
• 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 boundary.

         ¶9 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.

         ¶10 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 ...


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