COLORADO COURT OF APPEALS 2016COA131
Court of Appeals No. 15CA1505 City and County of Denver District Court No. 15CV32088 Honorable Morris B. Hoffman, Judge
Keith Love and Shannon Love,
Plaintiffs-Appellants,
v.
Mark Klosky and Carole Bishop,
Defendants-Appellees.
JUDGMENT AFFIRMED
Division I Opinion by JUDGE TAUBMAN Freyre, J., concurs Dailey, J., specially concurs
Announced September 8, 2016
Polsinelli PC, Bennett L. Cohen, William R. Meyer, Denver, Colorado, for Plaintiffs-Appellants
The 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 standing?
¶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.1 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
1 Bishop initially purchased the property, and Klosky and Bishop later married. Although both briefs refer to Klosky and Bishop as “the Bishops,” because Klosky’s name appears first on the case caption, we refer to Klosky and Bishop as “the Kloskys” for readability.
1 (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.
I. Background
¶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,
2 they bear long fruits that resemble slender bean pods. The tree is
seventy to ninety years old.
¶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
3 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,
4 847-48 (Colo. App. 2007) (an appellate court will not consider
arguments raised for the first time during oral argument).
II. Joint Care of the Tree
¶ 12 Although the Loves concede that Rhodig binds us, they
contend that the trial court erred by concluding that they did not
prove that they jointly cared for the tree. However, because the
Loves failed to designate the relevant trial testimony as part of the
record on appeal, we have insufficient information to review the trial
court’s factual findings and conclusions and thus must uphold its
decision.
A. Standard of Review
¶ 13 We review de novo a lower court’s conclusions of law. S. Ute
Indian Tribe v. King Consol. Ditch Co., 250 P.3d 1226, 1232 (Colo.
2011). We set aside a trial court’s factual findings only when they
are “so clearly erroneous as to find no support in the record.” Id.
(quoting People in Interest of A.J.L., 243 P.3d 244, 250 (Colo. 2010)).
B. Applicable Law
¶ 14 As stated above, under the majority rule, neither property
owner can cut down a tree that straddles the shared boundary line.
Scarborough, 93 P. at 383-84. However, in Colorado, boundary
5 trees are held in common by both landowners only if they were
jointly planted, jointly cared for, or were treated as a partition
between the adjoining properties. Rhodig, 161 Colo. at 340, 421
P.2d at 731.
C. Analysis
¶ 15 The trial court concluded that the catalpa tree was not jointly
planted, jointly cared for, or treated as a partition. The Loves only
appeal the court’s determination that the tree was not jointly cared
for.
¶ 16 While the Loves cast the issue as a pure legal question of
whether the trial court correctly interpreted the phrase “jointly care
for,” we agree with the Kloskys that the trial court’s interpretation of
that phrase must be examined in the context of the evidence
presented regarding the issue of joint care.
¶ 17 Here, the Loves designated none of the trial testimony as part
of the record on appeal. Instead, they only provided a transcript of
the closing arguments and the trial court’s oral findings from the
bench. The Loves’ description of the evidence in their opening brief
and references to comments the Loves made in closing argument
about the evidence are not a substitute for a transcript and record.
6 Therefore, we have no opportunity to review the conflicting evidence
that the parties presented at trial concerning the actions taken by
the parties to care for the tree. See Northstart Project Management,
Inc. v. DLR Group, Inc., 2013 CO 12, ¶¶ 13-17, 295 P.3d 956, 959-
60.
¶ 18 The trial court held that the fact that the Loves cut a branch
off the tree to make room for a swing set, incidentally watered the
tree when watering their own lawn, and raked the leaves in their
yard was insufficient to constitute joint care for the tree. We
presume that the trial court’s findings and conclusions are
supported by the evidence when the appellant has failed to provide
a complete record on appeal. People v. Morgan, 199 Colo. 237, 242-
43, 606 P.2d 1296, 1300 (1980). Therefore, without the full record
on the issue, we cannot properly determine whether the trial court
correctly decided the issue of joint care for the tree and must
uphold its determination.
III. Reconsideration of Rhodig
¶ 19 The Loves, acknowledging that only the supreme court can
overturn Rhodig, nevertheless argue that (1) Rhodig is the clear
minority rule among jurisdictions addressing the issue and should
7 be reconsidered by the supreme court and (2) the court’s opinion in
Rhodig was based on a misreading of a Nebraska case on which it
relied. We agree with the Loves that the supreme court may wish to
reconsider Rhodig. Before we address the Loves’ two contentions,
we examine the Rhodig decision more closely.
A. The Rhodig Decision
¶ 20 In Rhodig, the plaintiffs planted one tree wholly on the
defendant’s property, and three other trees grew on both properties.
161 Colo. at 340, 421 P.2d at 730-31. Twenty years later, when the
defendant removed the trees, the plaintiffs sought damages. Id.
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. Id. 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. Id. No Colorado case has interpreted or cited Rhodig
since the supreme court set forth this rule in 1966.
8 ¶ 21 Notably, two justices dissented in Rhodig and would have
instead applied the majority rule. Id. at 341, 421 P.2d at 731
(Frantz, J., dissenting).
B. Rhodig as a Minority Rule
¶ 22 Rhodig is a minority rule. Only five states follow a similar rule
and hold 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. See Holmberg v. Bergin,
172 N.W.2d 739 (Minn. 1969); Johnson v. Fiala, 143 S.W. 537 (Mo.
Ct. App. 1912); Garcia v. Sanchez, 772 P.2d 1311 (N.M. Ct. App.
1989); Brown v. Johnson, 73 S.W. 49 (Tex. Civ. App. 1903); Robins
v. Roberts, 15 P.2d 340 (Utah 1932).
¶ 23 On the other hand, courts in twenty-one states hold that a
tree, shrub, or other plant on a boundary line belongs to both
landowners as tenants in common. See Young v. Ledford, 37 So. 3d
832 (Ala. Civ. App. 2009); Fleece v. Kankey, 72 S.W.3d 879 (Ark. Ct.
App. 2002); Scarborough, 93 P. at 383; Robinson v. Clapp, 32 A. 939
(Conn. 1895); Quillen v. Betts, 39 A. 595 (Del. Super. Ct. 1897);
Lemon v. Curington, 306 P.2d 1091 (Idaho 1957); Ridge v. Blaha,
9 520 N.E.2d 980 (Ill. App. Ct. 1988); Luke v. Scott, 187 N.E. 63 (Ind.
Ct. App. 1933); Harndon v. Stultz, 100 N.W. 329 (Iowa 1904);
Wideman v. Faivre, 163 P. 619 (Kan. 1917); Blalock v. Atwood, 157
S.W. 694 (Ky. 1913); Lennon v. Terrall, 244 N.W. 245 (Mich. 1932);
Griffin v. Bixby, 12 N.H. 454 (1841); Dubois v. Beaver, 25 N.Y. 123,
1862 WL 4733 (1862); Pinkerton v. Franklin Twp. Bd. of Trs., No.
83AP-946, 1984 WL 13994 (Ohio Ct. App. July 17, 1984); Higdon v.
Henderson, 304 P.2d 1001 (Okla. 1956); Cathcart v. Malone, 229
S.W.2d 157 (Tenn. Ct. App. 1950); Skinner v. Wilder, 38 Vt. 115,
1865 WL 2196 (1865); Happy Bunch, LLC v. Grandview N., LLC, 173
P.3d 959 (Wash. Ct. App. 2007); Montgomery v. Mahler, 546 N.W.2d
886 (Wis. Ct. App. 1996); see also F.S. Tinio, Annotation, Rights
and Liabilities of Adjoining Landowners as to Trees, Shrubbery, or
Similar Plants Growing on Boundary Line, 26 A.L.R.3d 1372 (1969).
¶ 24 Under this 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.” Robinson, 32 A. at 942. 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
10 land if that would thereby injure the tree. Scarborough, 93 P. at
383. A court may issue an injunction upon the complaint of a
landowner against the adjoining landowner to prevent the
destruction of a boundary tree. Harndon, 100 N.W. at 330. Trial
courts have broad discretion to enter such injunctions and can
modify them to suit the facts and circumstances of each case.
Robinson, 32 A. at 942. For example, the court may permit a
landowner who wishes to cut the tree down to prune the tree to
remove any dangerous limbs or may provide such other relief as
deemed reasonable. See Ridge, 520 N.E.2d at 984.
¶ 25 Nevertheless, if one cotenant cuts down the tree without the
permission of the other, the other cotenant has an action for
trespass and may recover damages. Dubois, 25 N.Y. at 127-28. In
such event, 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. Happy
Bunch, 173 P.3d at 964.
¶ 26 When the Colorado Supreme Court decided Rhodig, courts in
at least fourteen other jurisdictions had adopted the majority rule,
while courts in only four had adopted the minority rule. Since the
11 Rhodig decision, courts in eight jurisdictions have decided
boundary tree cases. Of those eight courts, only two have agreed
with Rhodig. Of the remaining six which have adopted the majority
rule, courts in two jurisdictions, Illinois and Washington, have
criticized the Rhodig decision. The Illinois case, Ridge, criticized
Rhodig for misinterpreting the cases upon which it relied, and the
Washington case, Happy Bunch, asserted that Rhodig’s policy was
unsound because the Rhodig court created a new theory of adverse
possession. Happy Bunch, 173 P.3d at 965.
C. Rhodig Misinterpreted Cases upon Which It Relied
¶ 27 The Ridge court criticized Rhodig as relying on cases that did
not support its decision. 520 N.E.2d at 983. The Rhodig court
relied on Weisel v. Hobbs, 294 N.W. 448 (Neb. 1940), and Hancock
v. Fitzpatrick, 170 S.W. 408 (Mo. Ct. App. 1914). In Weisel, 294
N.W. at 452, the plaintiff sought to enjoin his neighbor from
destroying a boundary tree. Id. However, the tree was located
entirely on the defendant’s property. Id. Nevertheless, the Weisel
court found that since both the plaintiff and the defendant had
gone to considerable lengths to care for the tree, the plaintiff had
“an interest in the tree sufficient to demand that the owner of the
12 other portion shall not destroy the tree.” Id. Weisel thus can be
interpreted as holding that an agreement or course of conduct can
give one party a protectable interest even if the tree is not actually
on a boundary line, but the decision does not hold that such an
agreement is required when a tree is actually on the boundary of
two adjoining properties.
¶ 28 Likewise in Hancock, 170 S.W. at 409, as in Weisel, the court
held that an agreement between property owners gave them co-
ownership rights, but the court there did not address whether
boundary line trees are jointly owned in the absence of an
agreement. See Ridge, 520 N.E.2d at 983.
¶ 29 As the Loves have acknowledged, Rhodig controls this case.
Nevertheless, we conclude 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
13 or some of the maintenance of the tree, including raking leaves and
pods and trimming the tree’s branches.
¶ 30 The special concurrence states that we should be reticent in
urging the supreme court to reconsider the issue in this case in
light of the doctrine of stare decisis. However, divisions of our court
have urged the supreme court to reconsider various issues
consistent with the tenets of C.A.R. 35(e) (stating that an opinion
may be published when it “directs attention to the shortcomings of
existing common law”). See People v. Theus-Roberts, 2015 COA 32,
¶¶ 41, 47, ___ P.3d ___, ___ (Berger, J., specially concurring) (writing
“separately to express my concerns” and recognizing that while the
court is “bound by the supreme court’s prior decisions,” “I believe it
is important to note how much time has elapsed since the supreme
court last visited” the subject of reliability of eyewitness
identification); Harner v. Chapman, 2012 COA 218, ¶ 3, 350 P.3d
303, 304-05 (respectfully urging the supreme court to address the
continued viability of Weiss v. Axler, 137 Colo. 544, 551, 328 P.2d
88, 92 (1958), regarding the burden of proof in res ipsa loquitur
cases in light of CRE 301), rev’d, 2014 CO 78, ¶ 18, 339 P.3d 519,
523-24 (following the Court of Appeals suggestion, holding Weiss
14 was wrongly decided and, accordingly, reversing); People v.
Stackhouse, 2012 COA 202, ¶ 33, ___ P.3d ___, ___ (Gabriel, J.,
specially concurring) (“I believe that this case provides an
appropriate vehicle to allow our supreme court to reconsider
Anderson [v. People, 176 Colo. 224, 227, 490 P.2d 47, 48 (1971)], in
light of developments in the law in the decades since that case was
decided [regarding waiver of claim that the right to public trial was
violated].”), aff’d, 2015 CO 48, ¶ 33, ___ P.3d ___, ___; People v.
Roldan, 353 P.3d 387, 391 (Colo. App. 2011) (Bernard, J., specially
concurring) (writing “separately to express my hope that our
supreme court will review . . . whether [Colorado’s] strict remedy of
automatic reversal . . . should be replaced by a remedy based on
harmless error analysis”), rev’d, 2014 CO 22, 322 P.3d 922 (citing
People v. Novotny, 2014 CO 18, ¶ 27, 320 P.3d 1194, 1202).
¶ 31 At oral argument, the Kloskys agreed that the trial court’s stay
should remain in effect pending any decision by the supreme court
or the Loves’ failure to timely petition for certiorari. Accordingly, we
continue in effect the trial court’s stay. See C.A.R. 8.
IV. Conclusion
¶ 32 The trial court’s judgment is affirmed.
15 JUDGE FREYRE concurs.
JUDGE DAILEY specially concurs.
16 JUDGE DAILEY, specially concurring.
¶ 33 I concur in the affirmance of the trial court’s judgment. I do
not, however, perceive that the issue in this case is any more
deserving of supreme court reconsideration than any other issue it
has decided.
¶ 34 As the majority points out, divisions of this court and
members of this court have, on occasion, recommended
reconsideration of an issue by the supreme court. But those
occasions are the exception, rather than the rule. We normally do
not tell the supreme court what its business should be, unless we
have a compelling reason for doing so.
¶ 35 Pointing out a shortcoming in the common law may be a
compelling reason. Cf. C.A.R. 35(e) (stating that a court of appeals
opinion may be published when it “directs attention to the
shortcomings of existing common law”). But a simple disagreement
about whether the case was rightly decided is not. See Randall v.
Sorrell, 548 U.S. 230, 244 (2006) (“Departure from precedent is
exceptional, and requires ‘special justification.’” (quoting Arizona v.
Rumsey, 467 U.S. 203, 212 (1984))); People v. Blehm, 983 P.2d 779,
788 (Colo. 1999) (“[A] court will follow the rule of law it has
17 established in earlier cases, unless clearly convinced that the rule
was originally erroneous or is no longer sound because of changing
conditions and that more good than harm will come from departing
from precedent.”) (emphasis added); see also Alleyne v. United
States, 570 U.S. ___, ___, 133 S. Ct. 2151, 2164 (2013) (Sotomayor,
J., concurring) (“Of course, under our doctrine of stare decisis,
establishing that a decision was wrong does not, without more,
justify overruling it.”); Mitchell v. W.T. Grant Co., 416 U.S. 600, 636
(1974) (Stewart, J., dissenting) (“A basic change in the law upon a
ground no firmer than a change in our membership invites the
popular misconception that this institution is little different from
the two political branches of the Government. No misconception
could do more lasting injury to this Court and to the system of law
which it is our abiding mission to serve.”); People v. Novotny, 2014
CO 18, ¶ 25 (“Among the kinds of considerations we and the United
States Supreme Court have identified as impacting a decision to
depart from prior precedent are the practical workability of that
decision; the extent to which a departure would work a hardship or
inequity on those who have relied on and ordered their behavior
around the prior ruling; and, importantly, whether the principles
18 upon which the ultimate holding is premised, or related legal
principles, have themselves developed in such a way as to leave the
prior ruling without support.”).
¶ 36 Here, the majority urges reconsideration of the Rhodig decision
based on its view that Rhodig was wrongly decided and was (and
remains) against the weight of other states’ authority. In my view,
these circumstances do not warrant the unusual step of
recommending that the supreme court overrule one of its prior
rulings. See Friedland v. Travelers Indem. Co., 105 P.3d 639, 652
(Colo. 2005) (Coats, J., dissenting) (“While the choice of other
jurisdictions may be some cause for the appropriate branch of this
state’s government to carefully examine the wisdom of its public
policy, it most certainly is not a ground, in itself, for overturning
our own established precedent. And the majority’s clear preference
for a change in policy hardly amounts to an assertion that
long-established law has for some reason become unworkable.”);
see also Payne v. Tennesee, 501 U.S. 808, 827 (1991) (“Stare decisis
is the preferred course because it promotes the evenhanded,
predictable, and consistent development of legal principles, fosters
19 reliance on judicial decisions, and contributes to the actual and
perceived integrity of the judicial process.”).
¶ 37 At the end of the day, the Rhodig rule identifies one winner in
this type of dispute, whereas the majority’s preferred rule identifies
another. Changing winners is not a sufficient reason for overruling
prior precedent. Nor is the passage of time, unless in the interim
period (1) the legal underpinnings of the case has been eroded or (2)
the decision has proved unworkable. I do not perceive either to be
the case here.