Mountain Law: A growing problem: Cutting down a boundary tree in Colorado (column)
In 1966, the Colorado Supreme Court decided a case called Rhodig v. Keck concerning a tree dispute. The facts were that there were two trees on a property owned by a man named Keck. His neighbors, the Rhodigs, planted some other trees next to the first believing them to mark the boundary. Over the course of 20 years, the trees overgrew the property line onto the Rhodig property. Keck then cut down the trees because he wanted to build a boundary fence and the Rhodigs sued him for damages. The Colorado Supreme Court held that Keck was not liable to the Rhodigs because the trees were on his property to start with and were not planted jointly, cared for jointly or treated as a partition between the adjoining properties. Notably, two justices dissented in the decision and argued instead for a rule that trees straddling a boundary cannot be cut down without mutual agreement of the affected neighbors.
At the time the Rhodig case was decided, a catalpa tree in the vicinity of Washington Park in Denver was only 30 or 40 years old. Catalpas are deciduous trees with large, heart-shaped leaves. In the spring, they produce large white or yellow flowers. In the fall, they bear long fruits that resemble bean pods. The tree is now 70 to 90 years old and is a healthy, mature, 70-foot tree. At ground level, the tree is now about 75 percent on a property owned by a couple called the Kloskys and 25 percent on a property owned by a couple called the Loves. The tree started its life on the Klosky property and began growing onto the Love property about 40 years ago, long before either party purchased their homes. The issue is that the Kloskys want to cut down the tree because they say it is a nuisance to rake the tree’s leaves and pods. The Loves wish the tree to remain because they say it provides them with shade, beauty and comfort and enhances their standard of living and the value of their home.
The trial judge decided that he was bound by the Rhodig case given the very familiar facts despite his personal desire that it were otherwise: “(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).”
The trial judge ordered that the Kloskys could not cut down the tree until the Loves exhausted all appeals.
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The Loves did appeal and, in a decision rendered in September 2016, the Colorado Court of Appeals likewise determined that the Rhodig case is binding precedent. However, in an unusual move, a majority of the appellate judges hearing the case encouraged the Colorado Supreme Court to consider overturning its Rhodig decision. The main reason is that the dissenting view in Rhodig — that neither neighbor can cut down a tree that straddles the shared boundary line without approval of the other neighbor — is now recognized as the majority view. Only five states follow a rule similar to that in Rhodig, while 21 states follow the opposite rule. Of those, two directly criticized the Rhodig decision when they rendered their own decisions. The Colorado Court of Appeals also concluded that Rhodig misinterpreted certain decisions from other states on which it relied.
The Loves will now presumably seek review from the Colorado Supreme Court and, if it’s not granted, the current decision will stand and the Rhodig case will continue to govern this issue in Colorado. Meanwhile, one can only assume that the leaves and pods will soon fall on the Kloskys’ yard as cold winds begin to blow.
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.
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