Case of the Day – Friday, November 24, 2017


king160921You’d think it would be a lot of fun to be a judge, thundering orders, edits and ukases all day long down at squirming lawyers and quivering clients.

But sometimes, even judges are bound to make decisions they don’t like. That’s what happened when the Loves – who lived next to the Kloskys – sued to save a beautiful catalpa tree.

The Kloskys wanted to cut the tree down because they thought it was a nuisance to rake up the tree’s leaves and pods. The Loves, on the other hand, wanted to save the tree because it provided them with shade, beauty, and comfort, and enhanced their standard of living and the value of their home.

Because the tree was about 4/5ths on the Klosky’s land, they believed they could do with it what they wanted. In a majority of American jurisdictions, they could not, because the clear boundary tree rule is that a tree growing on a boundary belongs to both landowners as “tenants in common.” Neither landowner may do anything to the tree without the permission of the other.

Colorado, however, follows a minority rule. It does not matter if a tree is on both owners’ parcels. What matters, instead, is intent: boundary trees are as common property only if the landowners jointly planted, jointly cared for, or treated the trees as a partition between the properties. This rule, adopted in Rhodig v. Keck, creates no end of mischief. Instead of a clear rule that parties can understand and accept without resort to lawyers and courts, Rhodig makes every boundary tree issue a legal taffy-pull, with the parties trying to spin alternate histories about who said what and who did what over the 50+ years of a tree’s existence. Lawyers love it: you can hear the billing meters spinning all the way from the east coast. But, in the words of the Chewbacca defense, it does not make sense.

The trial judge understood this, but his hands were tied, because Rhodig – a Colorado Supreme Court decision – mandated that if the plaintiffs could not prove they had a deal with the Kloskys, or had otherwise nurtured the tree that the Loves loved, the Kloskys owned it and could remove it as they wished. The trial judge said:

The 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

A catalpa -beloved by fisherman and fowl - but not by Rick Meyers.

     A catalpa – beloved by the Loves  – but not by the Kloskys.

The Court of Appeals agreed, but with a very pointed suggestion to the Supreme Court that it revisit the issue, and abandon the ill-advised Rhodig decision. The Colorado Supreme Court is doing so: oral arguments in the case were held before a high school audience, of all things, a little over a month ago. The end of the Rhodig rule may be near.

Love v. Klosky, Case No. 15CA1505 (Ct.App. Colorado, Sept. 8, 2016). Keith and Shannon Love were neighbors of Mark Klosky and Carole Bishop, with a 70-year old but quite healthy catalpa tree, the trunk of which straddled their common boundary. The Kloskys thought the tree was a nuisance, and wanted to cut it down. The Loves loved the tree.

At the ground level, 74 percent of the tree’s trunk was on the Kloskys’ property, with the remaining 26 percent on the Loves’ property. At the four-foot level, the numbers were 86 percent Klosky, 14 percent Love. When the tree first sprouted, it was all on the Kloskys’ property, but for the past 40 years, the tree has been on or over the property line.

The trial court felt itself bound by the Colorado Supreme Court’s decision in Rhodig v. Keck, and entered judgment letting the Kloskys remove it.

The Loves appealed.

Held: The Court of Appeals reluctantly concluded that the Kloskys could remove the tree over the Loves’ objection. The Court noted that the majority rule on ownership of boundary trees in the United States held that neither property owner can cut down a tree that straddles the shared boundary line. Colorado, however, is an outlier. Under the Colorado Supreme Court’s  Rhodig decision, the landowner of the property where a boundary tree was first planted can cut the tree down over the other 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.

The Loves tried to fit themselves within Rhodig by arguing that they had jointly cared for the tree over the years. The trial court, however, held that the fact that they cut a branch off the tree to make room for a swing set, watered the tree as an incidental effect of watering their own lawn, and raked the leaves in their yard was insufficient to constitute joint care for the tree.

Beyond that, the Loves argued that Rhodig is the clear minority rule among jurisdictions addressing the issue and should be reconsidered by the supreme court. The Court of Appeals described Rhodig as follows:

In Rhodig, the plaintiffs planted one tree wholly on the defendant’s property, and three other trees grew on both properties. Twenty years later, when the defendant removed the trees, the plaintiffs sought damages. Logically, the court held that the plaintiffs could not affix something to their neighbor’s land and then claim ownership rights without some agreement, right, estoppel, or waiver. The court, however, stated a rule that governed all boundary trees: 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. No Colorado case has interpreted or cited Rhodig since the supreme court set forth this rule in 1966.

boundary160921The Court observed that Rhodig is clearly the minority rule, with only five states following a similar rule that a tree, shrub, or other plant on a boundary line is the common property of adjoining landowners, or at least the subject of joint duties, only where they have so treated it by express agreement or by their course of conduct. On the other hand, at least 21 states hold that a tree, shrub, or other plant on a boundary line belongs to both landowners as tenants in common. Under the majority rule, “each of the landowners upon whose land any part of a trunk of a tree stands has an interest in that tree, a property in it, equal . . . to, or perhaps rather identical with, the part which is upon his land…” and “neither property owner can cut down the tree without the consent of the other, nor can either cut away the part that extends into his or her land if that would thereby injure the tree.”

If one of the cotenants cuts down the tree without the permission of the other, the other cotenant has an action for trespass. In such a case, a court may calculate damages based on the value of the cut tree, apportioned according to the percentage of the tree that was located on the injured landowner’s property.

The Court agreed with a 2007 Washington state decision, Happy Bunch, LLC v. Grandview North, LLC, that criticized the Rhodig decision as “unsound because the Rhodig court created a new theory of adverse possession” and a 1988 Illinois case, Ridge v. Blaha, which criticized Rhodig as relying on cases that did not support its decision.

The Court observed that “the supreme court may wish to reconsider Rhodig based on the many jurisdictions adopting the majority rule and the two decisions criticizing it. If the supreme court reconsiders Rhodig and adopts the majority rule, the court could remand this case to the trial court to issue an injunction to prevent the Kloskys from cutting down the tree. The injunction could include a provision that the Loves would be responsible for all or some of the maintenance of the tree, including raking leaves and pods and trimming the tree’s branches.”

– Tom Root


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