Case of the Day – Friday, September 9, 2022


I have to confess that, although I am a proud Midwesterner, I love the State of Washington. Temperate rain forests, soaring mountains, beautiful lakes, great coffee, greater beer, and Seattle in the sunlight.

OK, not so much about the sunlight. But for that, Washington is two fantastic states, the first being a lush and moist paradise west of the crest of the Cascades, and the other being a sprawling, sunny and semi-arid plain east of the mountains.

Despite my love of the place, I was unstinting in my criticism yesterday about how the Mustoe court had sanctioned an “anything goes” culture in Washington, in which a landowner could misuse the Massachusetts Rule to kill a neighbor’s tree by indiscriminate cutting of roots and branches, regardless of effect. As long as you stay on your own property, you can trim branches and roots with a backhoe bucket, if you so choose.

Today’s case is every bit as puzzling as is Mustoe, but in quite the opposite direction. One set of neighbors hacked branches off a boundary tree to the point that the other set legitimately feared that it was so unstable it would fall. The second set of neighbors then retaliated, taking the rest of the branches off the tree. That stabilized the tree trunk but had the unfortunate side effect of killing the tree.

Neighbor One, who lacked not for chutzpah, sued Neighbor Two for timber trespass. The courts found Neighbor Two liable for treble damages under the State’s timber trespass statute, regardless of the fact that Neighbor One’s reckless trimming created a hazard tree and the need for the drastic remedy that killed the tree.

The Court in today’s case candidly “acknowledge[s] that under Mustoe and our holding here, it would appear that a property owner has greater rights with respect to trimming a neighboring tree than a tree standing on a common property line with a neighboring property. This outcome is the result of applying a statute to a situation that was not likely contemplated upon the statute’s drafting. Our legislature may clarify the statute’s applicability to boundary trees in future legislation.”

Of course, part of the problem may be that the lawyer for the Pelayos (Neighbor Two) failed to remember that the best defense is often a good offense. He did not file a timber trespass claim against the Herrings (Neighbor One), which would have placed their misconduct into play. To be sure, in any fair world, the Herrings’ conduct in removing all the branches overhanging their property also violated RCW 64.12.030, and should have mitigated, if not outright excused, the Pelayos’ cutting in response.

Herring v. Pelayo, 397 P.3d 125 (Wash.App. Div. 2, 2017). The Herrings and Pelayos are neighbors. In December 2011, the Herrings hired a tree trimmer to remove some branches from a tree located on the common property line. The Herrings did not discuss their plan to remove branches from the tree with the Pelayos prior to the work. When they discovered the trimming, the Pelayos believed that the work had caused the tree to become unbalanced, constituting a danger to their home. Three weeks after the Herring trimming, the Pelayos had a tree trimmer remove all the remaining branches from the boundary tree, causing the boundary tree to die. Like the Herrings, the Pelayos did not discuss their plans with the neighbors before the work was done.

The Herrings sued, claiming a timber trespass in violation of RCW 64.12.030 or, in the alternative, regular garden-variety trespass in violation of RCW 4.24.630. At trial, Jose testified that he knew the tree at issue was on the common property line, he told the tree trimmer to remove all of the remaining branches from the tree, he did not discuss his plan with the Herrings, (4) the tree was alive prior to the removal of the remaining branches, and (5) he believed that removing the remaining branches would kill the tree, which it did.

The Pelayos’ tree trimmer, Tim Jones, testified that he believed the tree was a danger to the Pelayos, and he had recommended that they. Tim stated that remove the entire tree or, at least cut off all the remaining branches. But Tim also told the Pelayos that they could remove a top portion of the tree to balance it, and Tim admitted that he might have been able to remove some of the remaining branches to render the tree safer without killing it.

The trial court held that the Pelayos committed timber trespass under RCW 64.12.030, and their defense of mitigating circumstances, allowed by RCW 64.12.040, did not apply.

Held: The Pelayos had to pay.

Jose and Blanca Pelayo argued that the trial court failed to find that their conduct in removing the branches from the boundary tree was both (1) willful and (2) without lawful authority. Without those findings, they contended, they could not have violated RCW 64.12.030.

RCW 64.12.030 provides that “whenever any person shall cut down, girdle, or otherwise injure, or carry off any tree… on the land of another person… without lawful authority, in an action by the person… against the person committing the trespasses… any judgment for the plaintiff shall be for treble the amount of damages claimed or assessed.” Washington law is clear that there must be an element of willfulness on the part of the trespasser to support treble damages under RCW 64.12.030. In this context, the Court said, “willful” simply means that the trespass was “not casual or involuntary.” The burden of proving that a trespass was casual or involuntary is upon the defendant once the fact of trespass and the damages caused thereby have been shown by the plaintiff.

Here, the Court said, the Pelayos never argued and no evidence ever suggested that the trespass was casual or involuntary. Under those circumstances, it was not necessary for the Herrings to prove willfulness.

Jose admitted at trial that he knew the Herrings had an ownership interest in the boundary tree and that he had ordered the remaining branches to be removed from the tree knowing that such removal of branches would kill the tree. The Court said his testimony “was tantamount to a concession” that the conduct in removing the branches was willful. No other evidence would have let the trial court infer that this conduct was casual or involuntary. Therefore, no specific finding as to willfulness was required.

Next, the Pelayos argued that they were lawfully authorized to remove branches from the boundary tree that were overhanging their property. The Court made short work of that argument as well.

RCW 64.12.030 applies only to people acting without lawful authority. A landowner has the legal authority to engage in self-help and trim the branches and roots of encroaching onto his or her property. On the other hand, a landowner does not have the legal authority to cut down an encroaching tree. But here, the issue was whether a landowner may trim the branches of a tree standing on a common property line in a manner that a defendant knows will kill the tree.

The Court began by holding that trees standing directly on the property line of adjoining landowners are the common property of both landowners. The Pelayos contended that landowners had an unfettered right to trim branches that overhang their property regardless of whether the tree is situated entirely on a neighboring property or, instead, is situated on a shared property line.

Despite Washington State’s rather cavalier treatment of a tree owner’s rights vis-à-vis the neighbor in the Mustoe decision, the Court concluded that where the tree stood on a common property line, both the Pelayos and the Herrings had undivided property interests in the tree. This was consistent with the only other relevant decision on the matter, a Washington appellate decision in Happy Bunch LLC. Because the Pelayos have a property interest in the tree at issue, the Court reasoned, portions of the tree overhanging their property could not be said to be “encroaching” in the same way that the branches and roots were encroaching in Mustoe.

The Pelayos and Herrings owned the tree as tenants in common, and thus each couple was entitled to use, maintain, and possess the boundary tree, but not in a manner that “interfered with the coequal rights of the other cotenants.” Unlike a landowner engaging in self-help to trim branches overhanging his or her property from a tree situated entirely on the property of another, the Court ruled, a cotenant owning a boundary tree had a duty not to destroy the common property and thereby interfere with the rights of the other cotenants.

After all, the Court argued, if landowners had an unfettered right to cut away the portions of a common boundary tree that stand on their property, without any regard for whether such cutting would injure or destroy the tree, the timber trespass statute could become inapplicable to neighbors sharing a property interest in a boundary tree. Under the Pelayos’ argument, the Court complained, a neighbor sharing a property interest in a boundary tree could effectively destroy the tree and escape liability under the timber trespass statute if the neighbor destroys the tree in a manner that does not physically trespass on the portion of the tree situated on the neighboring property. “This result cannot withstand the plain language of RCW 64.12.030,” the Court said, “which imposes liability on ‘any person… [who] cut[s] down … or otherwise injure[s] … any tree… on the land of another person’.”

The Court observed that it also had to “give effect to language in the statute shielding from liability conduct that is taken with ‘lawful authority’… In recognition of the long-recognized lawful authority to trim overhanging vegetation, the lawful authority to use and maintain property held in common with a cotenant, and the plain language of the timber trespass statute, we hold that where a tree stands on a common property line, the common owners of the tree may lawfully trim vegetation overhanging their property but not in a manner that the common owner knows will kill the tree.”

Because the Pelayos admitted they directed the removal of the remaining branches of the boundary tree, knowing that the removal would kill the tree, they were liable under RCW 64.12.030.

The Pelayos tried to avoid being hit with treble damages under RCW 64.12.040 by arguing that mitigating circumstances applied to their conduct. They said that because they cut the tree branches while standing on their property, they had probable cause to believe that they owned the land where such conduct took place.

The Court rejected that argument, too, holding that RCW 64.12.030 violations involve direct trespass to a tree, not trespass to the land on which the tree grows. The timber trespass statute applies when a defendant commits a direct trespass that causes immediate, not collateral, injury to a plaintiff’s timber, trees, or shrubs, even if the defendant is not physically present on a plaintiff’s property.

– Tom Root


Case of the Day – Thursday, September 8, 2022


It’s supposed to be the most wonderful time of the year… high school games every Friday night, our beloved Ohio State Buckeyes (and how about that slugfest last Saturday night against Notre Dame?) on Saturday, and the Super Bowl-bound Cleveland Browns on Sundays.

In honor of the gridiron season, we resort to cheap metaphors today while considering an unusual and (to us) troubling tree law case. Change the fact pattern by about three feet, and the outcome would have been the opposite of what the court ruled. That is, if Jennifer’s trees had been growing a yard or so south of where they were rooted, they would have been boundary trees. Neighbors Tony and Xiaoye couldn’t have touched them. But because the trunks and root flares of the conifers were all on Jennifer’s land, Tony got away with whacking away so much root support that Jennifer had to take the three trees down.

“Can they do that?” you ask, because you seem to remember a California case that said otherwise. Good recall, tree law fan. Unfortunately, the answer is pretty much, “Yeah, in Washington, they can do that.” But somehow it seems that the answer ought to be otherwise, that your right to Massachusetts Rule-style hacking at your neighbor’s tree should be informed by some kind of a duty not to kill the tree in the process.

Trigger warning: the outcome of this case is tragic for the trees involved, and those sensitive readers among us who cower at the sound of chainsaws might be needlessly upset.

Mustoe v. Ma, 371 P.3d 544 (Wash.App. 2016). Jennifer Mustoe had two large Douglas fir trees located entirely on her property, about three feet from the property line. Her neighbors were Anthony Jordan and Xiaoye Ma. In October 2013, Tony dug an 18-to-20-inch deep ditch on his property along the border of Jennifer’s lot. In the process, he exposed and removed the trees’ roots, leaving them to extend only 3-4 feet from the trunks, a loss of nearly half of the trees’ roots, all from the south side of the trees. The trees were thus exposed to southerly winds with no support, making the damaged trees likely to fall on Jennifer’s home.

The landscape value of the trees was estimated to be $16,418; the cost of their removal was estimated to be $3,913.

Jennifer filed suit against Xiaoye and Tony, asserting that Tony had negligently, recklessly, and intentionally excavated and damaged her trees. The trial court dismissed Jennifer’s claims, holding that Tony was entitled to remove those portions of roots that had encroached onto his and Xiaoye’s property and that in so doing, he did not owe Jennifer a duty of due care to prevent damage to the trees.

Jennifer appealed.

Held: The Court rejected Jennifer’s claims.

Jennifer started out a field goal behind, because she was compelled to acknowledge that Washington law lets an adjoining landowner engage in self-help and trim the branches and roots of a neighbor’s tree that encroach onto his or her property. Yet, Jennifer argued, the right to self-help does not extend to removing the tree itself, and the State’s common “does not immunize a landowner against liability for damage to the trimmed trees” and argues that the Court should hold that in exercising self-help, a landowner owes a duty of care to prevent damage to the trees themselves.

Jennifer thought she’d put one through the uprights and tie the score, but the Court played Lucy to her Charlie Brown. The law was clear, the Court said, that an adjoining landowner may trim only those branches or roots that encroach on his own property, but did not hold that a landowner owes a duty to act in good faith or reasonably to prevent damage to the trees.

Jennifer also claimed that under state law, all members of society owe a broader legal duty to their fellow citizens and must not use their own property is such a way as to cause injury to others. She cited an exception to the common enemy doctrine in water trespass cases as an example of this duty. The common enemy doctrine allows landowners to dispose of unwanted surface water in any way they see fit, without liability for resulting damage to their neighbors, but a “due care” exception requires that a landowner change surface water flow in good faith and in such a way as not to cause unnecessary damage.

The Court rejected Jenn’s comparison, observing that no court had ever extended the “due care” exception beyond surface water. The Court said, “Surface water is a common enemy precisely because it is a force of nature which may indiscriminately affect any landowner. As such, each landowner may defend against it so long as he or she does not do so in a manner that unnecessarily redirects the wrath of the common enemy upon a neighbor. Unlike surface water, tree roots and branches are not a force of nature that indiscriminately wreak havoc among adjoining landowners. Instead, they are an encroachment upon the land of one’s neighbor.

Jennifer, facing second and long, argued that Booska v. Patel, a California case, found that adjoining landowners had a duty to act reasonably in trimming encroachments where neighbors’ trees were concerned. Citing a decision from the other end of the country, Jennifer argued that in Fliegman v. Rubin, a New York court – relying on Booksa – reversed the trial court’s summary dismissal of plaintiff’s claims for damages to his trees allegedly resulting from the defendant’s severance of roots that had encroached on to his property. The Fliegman court held there was an issue as to whether severance of the trees’ roots damaged the plaintiff’s trees because “the right to self-help is limited, in that an adjoining landowner’s right to engage in self-help ‘does not extend to the destruction or injury to the main support system of the tree… .'”

Jennifer’s court was unswayed, holding that Booska and Fliegman appeared to be “outliers.” In Alvarez v. Katz, the Vermont Supreme Court rejected the holdings in Booska and Fliegman, finding that the “right to cut encroaching trees where they enter the land of another, without regard to the impact on the encroaching tree by such cutting, is well established under Vermont law.”

Here, the Court was likewise persuaded that the law in Washington was consistent with the general rule as applied in Vermont.

Pinned deep in her own territory on third down, Jennifer aired it out. She contended that her nuisance action against Tony and Xiaoye should go forward because Tony’s excavation and removal of tree roots was unreasonable in relation to the harm it caused to her trees. A nuisance is an unreasonable interference with another’s use and enjoyment of property. RCW 7.48.010 defines an actionable nuisance as “whatever is injurious to health or indecent or offensive to the senses, or an obstruction to the free use of property, so as to essentially interfere with the comfortable enjoyment of the life and property.

The fundamental question in a nuisance issue is whether the use to which land is put can be considered reasonable in relation to all the facts and circumstances. Tony argued that Jennifer had no action for nuisance because she has no legally recognized right. The Court agreed that Jennifer had not established that she has any legal cause for complaint or interference with the lawful removal of the roots on Ma’s property.

A nuisance claim will fail if it is nothing more than a negligence claim “in the garb of nuisance” unless the negligence claim has merit. Where the alleged nuisance is a result of the alleged negligent conduct, the rules of negligence are applied.

Here, Jennifer’s nuisance claim arose from Tony’s actions that damaged the trees; the nuisance is the result of his alleged breach of duty. But there was no breach of duty: because Jennifer’s negligence claim failed, her nuisance claim did, too.

On fourth down and a mile, with only a few seconds left, Jennifer threw the Hail Mary. She complained that she was entitled to damages under the timber trespass statute, RCW 64.12.030. The statute reads, “Whenever any person shall cut down, girdle, or otherwise injure, or carry off any tree, … timber, or shrub on the land of another person, … without lawful authority, in an action by the person, city, or town, against the person committing the trespasses or any of them, any judgment for the plaintiff shall be for treble the amount of damages claimed or assessed.”

Alas, the ball fell short. By its own terms, the Court said, the timber trespass statute applied only to persons acting without lawful authority. Because Tony did not act unlawfully when he removed roots that encroached onto his property, the claim fails.

– Tom Root


Case of the Day – Wednesday, September 7, 2022


If you were not following Internet culture (as oxymoronic as that phrase may be) twenty years ago or so, you might not recognize the badly-mangled taunt “All your base are belong to us,” derived from the poorly-translated Japanese video game, Zero Wing. It became a cult classic in 2001, and the melodious strains of the techno dance hit Invasion of the Gabber Robots can be heard in some of the goofier corners of the ‘Net – and there are plenty of those – to this very day.

allyourbaseOver the past week, we have looked at Colorado’s unusual and needlessly complex approach to boundary trees. Yesterday and today, we are looking at another approach, one that is simple, clean and efficient.

In today’s case, an elm tree stood on the boundary line between the Ridges and the Blahas. One can almost imagine Mr. Blaha — who was tired of the mess the elm made every fall — announcing to the tree that “you are on the way to destruction!” But the problem was that, contrary to Mr. Blaha’s belief, all the tree’s base did not belong to him, at least not just to him. Rather, the base of the tree straddled the property line between the Blaha homestead and the Ridges’ house.

Unlike the Colorado decision of Rhodig v. Keck, which we discussed in our review of Love v. Klosky last week, the Illinois court did not require that the plaintiff show who had planted or cared for the tree. Instead, its analysis was simple: the tree grew in both yards, and thus, the Ridges had an interest in the tree, as did the Blahas. This made the landowners “tenants in common,” and prohibited either from damaging the tree without permission of the other.

The Illinois view, exemplified here and in yesterday’s discussion of Holmberg v. Bergin, is the more common approach than Colorado’s “husbandry” test, and it prevails in the United States. Here, the Court issued an injunction against Mr. Blaha prohibiting him from cutting down the tree. For great justice.forgreatjustice

Ridge v. Blaha, 166 Ill.App.3d 662, 520 N.E.2d 980 (Ct.App. Ill. 1988). The Ridges sought an injunction against the Blahas to prevent them from damaging an elm tree growing on the boundary line between their respective properties. After living with the elm for many years, the Blahas tired of the tree’s unwanted effects and decided to remove it with the help of an arborist. The Ridges were not consulted, however, and when arborist Berquist came to remove the tree, plaintiffs objected that the tree belonged to them and that they did not want it destroyed.

Growing_TreeThe evidence showed that the base of the tree extended about 5 inches onto the Ridges’ property, but that the tree trunk narrows as it rises so that at a height of 1.25 feet, the trunk is entirely on Blahas’ side of the line. Photographs were also introduced which showed the tree interrupting the boundary line fence. The trial court found that no substantial portion of the elm’s trunk extended onto the Ridges’ property and that, as such, they did not have a protectable ownership interest in the tree. The Ridges appealed.

Held: The Ridges had a protectable interest. The Court held that the fact that a tree’s roots across the boundary line, acting alone, is insufficient to create common ownership, even though a tree thereby drives part of its nourishment from both parcels. However, where a portion of the trunk extends over the boundary line, a landowner into whose land the tree trunk extends had a protectable interest even though a greater portion of the trunk lay on the adjoining landowners’ side of the boundary. That interest makes the two landowners tenants in common and is sufficient to permit the grant of an injunction against the adjoining landowner from removing the tree.

Move Zig.

– Tom Root


Case of the Day – Tuesday, September 6, 2022


Trees often don’t start out straddling property lines. Rather, they sprout as carefree saplings, but later grow above and below the ground without regard for metes and bounds.

Do you remember Flap Your Wings? It’s a great children’s book by P.D. Eastman, a favorite of my 4-year-old grandson Ezra, a story in which Mr. and Mrs. Bird suddenly find an oversize egg in their nest, placed there by a well-meaning stranger who found the orb on the ground and wrongly deduced it had fallen from the tree. They love and care for the egg, but it hatches into something that unexpectedly becomes a real nuisance in their nest. A great book with a happy ending… but no spoiler alert is needed here. We won’t tell you what hatched.Flap

When the Bergins planted a tree on their land in 1942, they had little idea that it would grow into a big problem. The tree thrived over 25 years, a great oak from a little acorn having grown, so to speak. (All right, it was an elm, but you take the point…) It expanded from its modest plot toward and across the boundary line with their neighbors, in the process knocking the neighbors’ chain link fence out of line, raising the sidewalk and causing drainage problems.

The Holmbergs argued that the tree was a nuisance, and demanded that the Bergins remove it. The Bergins argued that the tree was a boundary tree, and it thus belonged to both the neighbors and to them commonly. They thus could not be seen to be maintaining a nuisance.

The Court disagreed with the Bergins’ defense, ultimately adopting the rationale of the Colorado case of Rhodig v. Keck. It was the intent of the parties, the Court ruled, not the location of the tree, that governed whether the tree was a boundary tree.

Little trees don't stay little

Little trees don’t stay little…

Here, the Bergins planted and maintained the tree exclusively. They and the Holmbergs neither treated nor intended the elm to be a boundary tree. Instead, the tree ended up straddling the boundary only by an accident of growth. No matter where the tree had grown to encompass, it remained the Bergins’ tree, and the court found it to be a nuisance.

The damage wrought by the tree makes an interesting comparison to the 2007 Virginia decision in Fancher v. Fagella on encroachment and nuisances. The tree’s shallow root system made remedies short of removal infeasible, and the roots seemed to run just about everywhere. The case is an excellent illustration of how the facts of the particular growth at issue can drive a court’s decision.

Holmberg v. Bergin, 285 Minn. 250, 172 N.W.2d 739 (Sup.Ct. Minn. 1969). The Bergins and Holmbergs were adjoining landowners in Minneapolis. In 1942, the Bergins planted an elm tree on their property about 15 inches north of the boundary line, and they have maintained the tree and have exercised sole control over it since that time. The Holmbergs bought their place 10 years later and constructed a chain-link fence on their property 4 inches south of the common boundary line. When the fence was completed, the tree was 6 inches away from it and 2 inches away from the boundary line, so the tree did not touch or interfere with the fence.

By 1968, the tree was 75 feet high, with a trunk diameter of 2 1/2 feet, and it was protruding about 8 inches onto the Holmbergs’s property. Its roots extended onto Holmberg’s property and pushed the fence out of line, making the use of a gate in the fence impossible. The tree was close to both houses and the roots, being cramped for room, have pushed up a large hump in the ground around the base of the tree. The roots raised the ground level from the base of the tree to the Holmbergs’ sidewalk and caused it to tip toward their house, resulting in drainage into their basement.

To fix the problem, the Holmbergs were forced to construct a new sidewalk, which — because of the tree roots — promptly cracked as well. The Bergins’ property value property would depreciate by $5,000 if the tree were removed.

Over the Bergin’s complaint that the tree was a boundary tree, the trial court found that the tree was a nuisance and ordered it removed by the Bergins at their own expense. No damages were awarded to the Holmbergs due to their failure to take advantage of earlier opportunities to remove roots. The Bergins appealed.

The parties had never agreed that the tree would mark their boundary - and this was important to the court

     The parties had never agreed that the tree would mark their boundary – and this was important to the court.

Held: The tree was a nuisance. The Supreme Court held that something more than the mere presence of a portion of a tree trunk on a boundary line is necessary to make the tree itself a ‘boundary line tree’ so as to bring it within the legal rule that it is owned by adjoining landowners as tenants in common.

Whether the tree marks the boundary depends upon the intention, acquiescence, or agreement of the adjoining owners or upon the fact that they jointly planted the hedge or tree or jointly constructed the fence.

Nothing in the record discloses any intention of the parties that the tree should mark a boundary line between the properties. The law is clear that one cannot exercise his right to plant a tree in such a manner as to invade the rights of adjoining landowners. When one brings a foreign substance onto his land, he must not permit it to injure his neighbor. And, the Court held, an injunction against the continuance of a nuisance — such as the one issued by the trial court — may be proper if it is necessary to a complete and effectual abatement of the nuisance.

– Tom Root

Case of the Day – Friday, September 2, 2022


The rule regarding ownership of boundary line trees is a strange and malleable one. We often call it a tenancy in common, but it really is something different. In a tenancy in common, one of the owners can partition the property, taking a piece of it and leaving other pieces for the others. The owner can force a sale of the property.

An owner of an undivided piece of the tree can’t partition the tree, cannot sell the tree, and cannot destroy the tree. In fact, under the generally-accepted boundary tree rule, neither landowner can do anything to the tree without permission of the other.

Thus, a tree growing on Landowner A’s property, but with branches overhanging Landowner B’s property can have its branches trimmed, hacked and cut by Landowner B back to the property line. But the day the tree’s trunk crosses the property line, suddenly Landowner B can’t take the puniest bough with the permission of the other.

A landowner has more right to trim an encroaching tree when the trunk is entirely in someone else’s yard than she does when a part of the trunk is in her own yard. In other words, the more of the tree you own, the fewer rights you have with respect to the tree.

That does not make sense.

Strangely enough, about the only place that recognizes how nonsensical that result can be is Connecticut, a state where a lot of what goes on does not make sense. In a case that is now over 110 years old, the Connecticut Supreme Court held that where a tree is commonly owned – and the Court did not want to call it a tenancy-in-common – each owner retains Massachusetts Rule-type right to trim overhanging branches. It is only the trunk that is sacred.

Robinson v. Clapp, 32 A. 94, 65 Conn. 365 (Supreme Court Connecticut, 1895). Through a convoluted chain of purchases, sales, partitions and events, the boundary line dividing two urban residential properties in turn-of-the-century New Haven, Connecticut, belonging to John Robinson and John Clapp bisected a 40-year-old maple tree.

The tree was valuable to Mr. Robinson as an ornamental tree that also served to shade a part of his premises. Mr. Clapp intended to build a house to extend down along the boundary line for a distance of 58 feet from a point about 6 feet from said Bradley street, which would require removing the part of the maple tree in his yard. The proposed tree cutting would kill the tree.

At the time both men bought their respective properties, there was no fence or other visible sign of demarcation marking the boundary line. However, Mr. Clapp had previously lived within 100 feet of the premises and was fully acquainted with the boundaries.

The trial court granted Mr. Robinson an injunction preventing Mr. Clapp “from such interference with the tree mentioned in the complaint as will destroy or injure the same…”

Mr. Clapp appealed.

Held: Mr. Clapp could be enjoined from cutting any of the trunk, but he was free to trim all limbs that overhung his property.

The Court held that trees that stand wholly within the boundary line of one’s land belong to him, although their roots and branches may extend into the adjacent owner’s land. However, the adjacent owner may lop off the branches or roots of such trees up to the line of his land.

However, if the tree straddles the boundary line, the Court observed, prior law held that “the same is the property in common of the landowners. And neither of them is at liberty to cut the tree without the consent of the other, nor to cut away the part which extends into his land if he thereby injures the common property in the tree.”

The Court thought this was balderdash. “It must be apparent that the very nature of things differentiates such a so-called common interest in a tree from an ordinary tenancy in common, either of real or of personal property. In the case of a tree like the one in question, yielding no fruit, of trifling value for wood, if cut, of no value while standing, except for ornament or shade, what relief by any remedy, legal or equitable, provided for ordinary tenants in common, can a part owner of such tree, to whom its continued existence is of no advantage but an injury, obtain? Can he call upon the other part owner to account for the benefit which he has derived from such ornament or shade? Could he, in this state, procure a partition of the growing tree as real estate, under Gen. St. § 1304? And if he did, would not the lines of his own and the adjacent land divide the tree as they did before, leaving the rights of the parties identical in effect with what they were before? Could he obtain a sale of the tree under section 1307, either as real estate or personal property, that would carry the right to have it destroyed or removed? If it be conceded, as it must be, that he could do none of these, it will be evident, we think, that the tenancy in common in a tree is of a peculiar nature, if there be such a tenancy at all.”

Rather, the Court concluded that each of the landowners upon whose land any part of a trunk of a tree stands has an interest in that tree equal to the part of the tree which is upon his land. Each owner the right to demand that the owner of the other portion use his part as not unreasonably to injure or destroy the whole.

The Court decided that this right did not include any hacking away at the trunk. Instead, the Court ruled that “where the branches of a tree extend over an adjacent owner’s land, he may lop them off up to the line, even though that were practically to the trunk of the tree.” Thus, “the injunction should not extend further than to restrain the defendant from cutting any portion of the trunk and any further cutting of the branches or of the roots than he might lawfully have done had the trunk stood wholly upon the plaintiff’s land, but reaching to the defendant’s line.”

– Tom Root

Case of the Day – Thursday, September 1, 2022


Tree law fans (and we consider ourselves to be fans) waited for a long time for the Colorado Supreme Court to decide Love v. Klosky, and do away with the clunky old Rhodig v. Keck rule. The Rhodig rule holds that a tree that has grown up to be a boundary line tree is not owned by both property owners unless the neighbors claiming part ownership can jump through hoops to prove they (or their predecessors-in-interest) helped plant or nurture the tree, or treated it as the boundary line. The Court acted in 2018, and we duly reported on the matter at the time.

We were quite disappointed by the missed opportunity the Love decision turned out to be, and we said so.

Today, we’re reviewing the ruling, because, for the next week or so, we will be talking about the strangeness that is the boundary-tree rule. Brushing up on current events, weirdly enough, is a good place to start.

In the rest of the civilized world (sorry, Minnesota, not you), a tree that straddles a boundary line is owned by both property owners, usually as tenants-in-common but – as we will see next week – sometimes as something more or less. The general rule is that one owner can’t mess with the tree without the other one’s permission. As 1970s television cooking personality Chef Tell would have said, “Very simple, very easy.” No messy litigation, no one keeping tree-feeding logs, garden shop receipts, or detailed journals of joint plantings of years gone by. Just a simple, binary rule: If the tree crosses the property line, both landowners have an interest. If it does not cross the line, only one does.

Unfortunately, the Colorado Supreme Court’s love affair with stare decisis – the legal doctrine that holdings of prior cases should govern the outcome of present and future cases – has led it to a tortured defense of Rhodig. Everyone has it wrong, the Court said: Rhodig doesn’t apply to all boundary trees, just trees that started growing on one side of the property line and grew across the line to encroach on the other property.

It is more than a little ironic that a cartoon set in Colorado, South Park, once featured the Chewbacca defense, spun out by a Johnny Cochrane caricature. As Johnny put it in his closing, “That does not make sense.”

Johnny could have been talking about this decision. We all learned in 7th grade math that a line segment stretches between points A and B and has no thickness. Unless that tiny little sprig of an oak tree in your backyard has the dimensions of, say, Flat Stanley, the odds that it will not start growing on one side of the boundary or the other approach zero. And 10, 20 or 50 years down the road, proving that the tree began its arboreal life straddling a boundary line of no thickness will require legal and arborist legerdemain that will make the Chewbacca defense sound like a Supreme Court argument.

The effect of Love v. Klosky could well be to start a real cottage industry for Colorado lawyers and arborists, proving where young maple or catalpa shoots began their lives. The only trees that are not subject to this nonsensical rule would be those old enough to have been standing in the 19th century when Colorado was first platted.

The Colorado Supreme Court had a chance to clean things up by running Rhodig through the tree chipper of legal history. Instead, it labored mightily… and brought forth a mouse.

Love v. Klosky, 413 P.3d 1267 (Supreme Court Colo., 2018). Carole Bishop and Mark Klosky and Shannon and Keith Love own adjacent parcels of land in Denver’s Washington Park neighborhood. A 70–foot tall catalpa tree towers over two adjacent properties. At the base of its trunk, the tree sits roughly three-quarters on the Kloskys’ property and one-quarter on the Loves’ property. The tree began growing on the lots well before the parties moved in, and no one knows who (if anyone) planted it. Whatever its pedigree, the tree sheds leaves, seed pods, and branches on both properties.

Catalpa tree

Unhappy with the debris, the Kloskys want to cut the tree down. The Loves unsuccessfully tried to convince their neighbors not to do so. When persuasion failed, they sued. The trial court ruled for the Kloskys, holding consistent with the Colorado rule enunciated in Rhodig v. Keck that unless the Loves could prove that they or their predecessors had helped in planting or maintaining the tree, or that they and the Kloskys’ predecessors had treated the catalpa tree as the boundary, the tree belonged solely to the Kloskeys.

On appeal, the Loves argued that Rhodig should be overturned, but the court 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 jointly treated the trees as a partition between the properties.” Two of the appellate judges, however, called on the Colorado Supreme Court to overturn Rhodig and require instead that any time a tree straddles two lands, the adjacent property owners jointly own the tree as tenants-in-common.

The Loves asked the Colorado Supreme Court to review the case.

Held: The Supreme Court, refusing to overturn Rhodig v. Keck, held that the Kloskys could remove the tree because it remained 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. Because the Loves could not prove any shared property interest in the tree, they could not prevent the Kloskys from removing it.

The Loves argued that Rhodig should be overruled and that the Court should automatically make them tenants-in-common with the Kloskys for no other reason than the catalpa tree had crossed the property line. The Kloskys on the other hand argued that Rhodig holds that even when a tree crosses over a boundary line, it remains the property of the owner of the land on which the tree originally grew unless one of the joint-action situations enumerated in Rhodig applies.

The Court said there was no sound legal basis for abandoning Rhodig, surmising that “our ambiguous precedent caused the lower courts to conflate the common law rule for true boundary-line cases and the test for encroachment trees.” Instead, it clarified that Rhodig only governs “encroachment trees,” trees that begin life entirely on one property only to migrate partially to another. 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 jointly treated the trees as a boundary marker. The Court said that Rhodig does not represent some weird minority rule on boundary trees. Indeed, the Court lectured, the common law rule regarding true boundary-line-tree cases – where the tree sits squarely on a property boundary with no evidence of migration – is not implicated by Rhodig. In such a case, a tree standing on the division line between adjoining landowners is generally considered the common property of both landowners, even in Colorado. 

Thus, the Court ruled, Rhodig only applied when a tree originally growing on one property grew and encroached on another. Having clarified what Rhodig means, the Court concluded it was correctly decided and remains sound. “And, we see no conditions that have changed to make the above reasoning any less compelling today than when we decided Rhodig.”

The Court ruled that the Loves did not show other circumstances that would create joint ownership. “Just as the Rhodigs had no property interest in the trees that had encroached onto their land because there was not sufficient evidence the parties jointly planted the trees, jointly cared for the trees, or intended for the trees to serve as a boundary,” the Court wrote, “here, the Loves have no property interest in the tree that has encroached onto their land because they have not shown such joint activity implying shared ownership.”

– Tom Root