2016 COA 131
Colo. Ct. App.2016Background
- Neighbors Keith and Shannon Love (Loves) and Mark Klosky and Carole Bishop (Kloskys) dispute a 70–90 year-old catalpa tree whose trunk straddles their common property line.
- Measured at ground level, ~74% of the trunk is on the Kloskys’ lot and ~26% on the Loves’; at four feet, ~86% is on the Kloskys’ lot.
- The Kloskys seek to cut the tree down as a nuisance (leaves/pods); the Loves want to preserve it for shade, beauty, and value.
- Trial court, following Colorado precedent Rhodig v. Keck, found the Loves failed to show the tree was jointly planted, jointly cared for, or treated as a partition, and allowed removal (stay pending appeal).
- On appeal the Court of Appeals affirmed based on Rhodig, concluding the Loves also failed to provide an adequate record to challenge the trial court’s factual findings about joint care.
- The panel invited the Colorado Supreme Court to reconsider Rhodig, noting it is a minority rule and arguably rests on misread precedent, but left Rhodig controlling and upheld the judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Loves proved the tree was "jointly cared for" under Rhodig | Loves: their actions (watering, raking, trimming a branch for a swing) show joint care | Kloskys: those acts are insufficient to establish joint care | Court: Affirmed trial court — Loves failed to designate trial testimony on record; findings upheld absent full record |
| Whether Rhodig should be overruled | Loves: Rhodig is a minority rule, misreads precedent, and should be reconsidered | Kloskys: Rhodig is controlling Colorado precedent; stare decisis favors retaining it | Court: Suggested Supreme Court may reconsider but declined to overrule; affirmed under existing precedent |
| If Rhodig were overruled, what remedy might follow | Loves: (argued) adopt majority rule making boundary trees tenants in common and possibly enjoin cutting | Kloskys: (implied) rejection of majority rule permits removal | Court: Not reached on merits; observed that under majority rule injunction/remedies (shared maintenance, apportionment) could be available |
| Whether appellate court can review trial factual findings without full record | Loves: contends trial court misapplied "jointly care for" as a legal matter | Kloskys: appellate review is limited without transcript/record | Held: Appellate court cannot review disputed factual findings without complete record; presumes trial court correct |
Key Cases Cited
- Rhodig v. Keck, 421 P.2d 729 (Colo. 1966) (establishes Colorado rule: boundary trees are common only if jointly planted, jointly cared for, or treated as partition)
- Scarborough v. Woodill, 93 P. 383 (Cal. Dist. Ct. App. 1907) (majority rule: boundary trees held as tenants in common; neither owner may unilaterally cut)
- Weisel v. Hobbs, 294 N.W. 448 (Neb. 1940) (court recognized protectable interest where both parties extensively cared for a tree, but did not establish that such agreement is required for boundary trees)
- Ridge v. Blaha, 520 N.E.2d 980 (Ill. App. Ct. 1988) (criticized Rhodig for misinterpreting its authorities)
- Happy Bunch, LLC v. Grandview N., LLC, 173 P.3d 959 (Wash. Ct. App. 2007) (adopted majority rule and criticized Rhodig as creating an unsound adverse-possession-like policy)