Mountain Law: No longer a growing problem? Update on the boundary tree case (column) | SummitDaily.com

Mountain Law: No longer a growing problem? Update on the boundary tree case (column)

Noah Klug
Mountain Law

Back in 2016, I wrote a column called, "A growing problem: Cutting down a boundary tree in Colorado," about the case of Love v. Klosky. In brief, the Loves and the Kloskys are neighbors near Washington Park in Denver. There is a large catalpa tree that started life on the Klosky property and eventually grew onto the Love property. It is now 70-90 years old and 70-feet tall. The Kloskys want to cut down the tree because they claim it is a nuisance to rake its leaves and pods every year when they fall. 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.

Litigation ensued and both the trial court and the Colorado Court of Appeals determined that the Kloskys are allowed to cut the tree under a 1966 Colorado Supreme Court Case: Rhodig v. Keck. (Decisions of the Supreme Court generally bind lower state courts.) Under that case, a tree straddling a boundary line may be cut down by the owner of the property where the tree started life unless the tree was planted jointly, jointly cared for or is treated as a partition (none of which applied here).

As I wrote in 2016, the Court of Appeals took the unusual step of asking the Supreme Court to revisit the issue and decide whether Rhodig should still be followed. The Supreme Court took the case and just rendered its decision. Sadly for tree lovers, the Court reaffirmed Rhodig.

The Court first clarified that Rhodig outlines the test for determining ownership of an "encroachment tree" as distinguished from a "true boundary-line" tree. In other words, it only applies when the tree starts life on one property and later encroaches onto another, not when it starts life on the boundary line. A boundary-line tree may only be removed with approval of both affected owners.

The Court then invoked stare decisis, which is a judge-made doctrine that generally requires courts to follow their precedents. The Court noted that the virtue of stare decisis is that it promotes "evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process." Under stare decisis, courts may depart from a prior ruling only where sound reasons exist to do so (1) because the original ruling was erroneous or is no longer sound because of changing conditions; and (2) more good than harm will come from departing from precedent.

Applying these principles, the Court concluded that Rhodig remains sound and not following it could create more harm than good. The Court noted that, while the case at hand involves an encroached-upon neighbor who wants to keep the tree, the more common situation is the encroached-upon neighbor who does not want to be burdened by a tree. The Court was loath to make an encroached-upon neighbor a joint owner of the tree merely because the tree crossed the property line. This could create unforeseen liabilities if, for example, the tree branch fell and injured someone. Overall, the Court felt it best to continue following the rule in Rhodig that the original owner of an encroaching tree remains its sole owner and may remove it without approval from the encroached-upon neighbor.

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One problem with the Rhodig rule is the difficulty of determining whether a tree is a boundary-line tree that requires mutual consent to remove or an encroaching tree that may be removed by the owner of the property where the tree started life. In this case, it's been determined that the large catalpa tree is the latter and the Kloskys are entitled to remove it.

Noah Klug is owner of The Klug Law Firm, LLC, in Summit County. He may be reached at 970-468-4953 or Noah@TheKlugLawFirm.com.