Kеith Love and Shannon Love, Plaintiffs-Appellants, v. Mark Klosky and Carole Bishop, Defendants-Appellees.
Court of Appeals No. 15CA1505
COLORADO COURT OF APPEALS
Announced September 8, 2016
2016COA131
Honorable Morris B. Hoffman, Judge
City and County of Denver District Court No. 15CV32088. Division I. Opinion by JUDGE TAUBMAN. Freyre, J., concurs. Dailey, J., specially concurs.
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 Dеfendants-Appellees
¶ 2 This appeal involves thе competing rights of adjoining landowners — plaintiffs, Keith and Shannon Love (the Loves), and defendants, Mark Klosky and Carole Bishop (the Kloskys)1 — as to a tree at least seventy years old whose trunk straddles their common boundary. 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 (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 аbove, 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,
¶ 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’ рroperty. 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 exрlained that it wanted to
[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 thе 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, 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
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 clоsing argument about the evidence are not a substitute for a transcript and record.
¶ 18 The trial court held that the fact that the Loves cut a brаnch 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 completе 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
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.
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, 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 extеnds into his or her
¶ 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 сourt 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
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 treе. 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
¶ 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 thе 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
¶ 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
¶ 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
IV. Conclusion
¶ 32 The trial court‘s judgment is affirmed.
JUDGE DAILEY specially concurs.
¶ 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 dеcided.
¶ 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 sо.
¶ 35 Pointing out a shortcoming in the common law may be a compelling reason. Cf.
¶ 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 unusuаl 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 precеdent. 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. Tennessee, 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
¶ 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 pеriod (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.