Love v. Klosky, Supreme Court Case No. 16SC815

• Citation: 413 P.3d 1267
• Decision Date: 19 March 2018
• Docket Number: Supreme Court Case No. 16SC815
• Parties: Keith LOVE and Shannon Love, Petitioners, v. Mark KLOSKY and Carole Bishop, Respondents.
• Court: Supreme Court of Colorado

413 P.3d 1267

Keith LOVE and Shannon Love, Petitioners,

v.Mark KLOSKY and Carole Bishop, Respondents.

Supreme Court Case No. 16SC815

Supreme Court of Colorado.

March 19, 2018

Attorneys for Petitioners: Polsinelli PC, William R. Meyer, Bennett L. Cohen, Denver, Colorado

Attorneys for Respondents: The Overton Law Firm, Richard J. Gleason, Thomas J. Overton, Lakewood, Colorado

En Banc

JUSTICE HOOD delivered the Opinion of the Court.

¶ 1 Carole Bishop and Mark Klosky ("Klosky")¹ and Shannon and Keith Love ("the Loves") own adjacent parcels of land in Denver's Washington Park neighborhood. Klosky wants to remove a large tree sitting primarily on Klosky's property and partly on the Loves' property. The Loves want to keep the tree. Our seemingly straightforward task is to decide what analytical framework should govern this garden-variety dispute.

¶ 2 In undertaking this task, we do not write on a clean slate. Rhodig v. Keck holds that when a tree encroaches onto a neighbor's land, the tree remains the sole property of the owner of the land where the tree first grew, unless the tree was jointly planted, jointly cared for, or treated as a partition between the two properties. 161 Colo. 337, 421 P.2d 729, 731 (1966). Any such joint activity implies a shared property interest. Id. Applying Rhodig, the lower courts determined that the Loves cannot prevent Klosky from removing the tree because the Loves have failed to prove any such shared property interest in the tree.

¶ 3 If we're unwilling to construe Rhodig in their favor, the Loves ask us to overrule it and simply hold that a tree becomes joint property whenever it crosses a property line. We decline the Loves' invitation in both respects. As we explain more fully below, we do not construe our precedent in their favor. And we conclude that there is no sound legal basis for abandoning Rhodig. After surveying the early common law on which Rhodig is premised, we instead clarify that Rhodig governs "encroachment trees," which are those that begin life entirely on one person's property only to migrate partially to another's. Under Rhodig, a landowner may remove such a tree without first securing the approval of his neighbor, unless the landowners jointly planted, jointly cared for, or treated the trees as a partition between the properties. Here, the Loves did not prove such joint activity implying shared ownership of the encroaching tree. So, Klosky may remove the tree.

¶ 4 Thus, we affirm the judgment of the court of appeals and remand for further proceedings consistent with this opinion.

I. Facts and Procedural History

¶ 5 In central Denver's Washington Park neighborhood a seventy-foot-tall catalpa tree towers over two adjacent properties. At the base of its trunk, the tree sits roughly three- quarters on Klosky's property and one-quarter on the Loves' property. Estimated to be between seventy and ninety years old, the tree inhabited the lots well before the parties moved in, and it is unknown who planted it (or whether it might have simply sprung up as a "volunteer"). What we do know is that the tree sheds leaves, seed pods, and branches on both properties.²

¶ 6 Unhappy with the debris, Klosky wants to cut the tree down. The Loves tried to convince Klosky otherwise, but to no avail. Therefore, the Loves filed a lawsuit seeking a temporary restraining order ("TRO"), declaratory judgment, and a preliminary injunction to prevent Klosky from felling the tree. The parties agreed to a TRO pending the preliminary injunction hearing, and also agreed to treat that hearing as a trial on the merits.

¶ 7 The trial court ruled in favor of Klosky, articulating what it perceived as the test for joint ownership of a boundary tree in Rhodig: "In addition to proving it straddles the line, ... [the Loves have] to prove that the tree was jointly planted by the property owners or their predecessors, that it was jointly maintained, or that it was jointly treated as the boundary."

¶ 8 The trial court made the following factual findings:

• 74% of the tree trunk at its base is on Klosky's property and 26% of the trunk at its base is on the Loves' property;

• the tree started life on Klosky's land and grew partly onto the Loves' land;

• the parties did not plant the tree;

• the parties did not jointly maintain the tree in a way that might reflect "an implicit understanding that the tree is jointly owned"; and

• the parties did not intend the tree to serve as a boundary.

¶ 9 Based on these findings, the trial court concluded that the Loves had not met their burden of proving that they had a property interest in the tree. So, it dismissed the Loves' claims and dissolved the TRO, but then stayed those orders pending appeal.

¶ 10 On appeal, the Loves contended that (1) the trial court erred in concluding Klosky and the Loves did not jointly care for the tree and (2) Rhodig should be overturned. A division of the court of appeals affirmed the trial court in a published opinion, Love v. Klosky, 2016 COA 131, ¶ 3, –––P.3d ––––. Because the Loves failed to designate the relevant trial testimony as part of the record on appeal, the division determined it had insufficient information to review the trial court's decision regarding joint care. Id. at ¶ 12. The division held it was bound by Rhodig, which it interpreted to mean that "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. at ¶ 20. The division also declined to address the Loves' argument, raised for the first time in the Loves' reply brief, that Rhodig's test was intended to apply only to trees planted by trespass. See id. at ¶ 11. Two members of the division called for this court to overturn Rhodig and require instead that any time a tree straddles two lands, the adjacent property owners jointly own the tree as tenants-in-common. Id. at ¶ 29.

¶ 11 The Loves sought our review, and we granted certiorari to decide whether to overrule Rhodig.³

II. Analysis

¶ 12 We begin by identifying the standard of review, and then we summarize the doctrine of stare decisis, which governs when we should deviate from prior case law. We then consider whether to abandon Rhodig. To answer that question, we first evaluate what Rhodig means. We clarify that Rhodig outlines the test for determining ownership of an encroachment tree. We conclude that Rhodig has no bearing on the common law test for so-called "true boundary line" cases, that is, those cases that involve a tree straddling a property line without evidence of migration. Finally, we explain why the Rhodig rule, properly understood, remains sound for encroachment cases like the one before us here. Lacking a sound legal basis for abandoning our long-standing precedent in Rhodig, we conclude that we should not overrule it.

A. Standard of Review

¶ 13 We review questions of law de novo. People v. Porter, 2015 CO 34, ¶ 8, 348 P.3d 922, 924.

B. Stare Decisis

¶ 14 Stare decisis is a judge-made doctrine that requires courts to follow preexisting rules of law. Id. at ¶ 23, 348 P.3d at 927. "Stare decisis is the preferred course because it promotes the 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." Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991) ; see also People v. LaRosa, 2013 CO 2, ¶ 28, 293 P.3d 567, 574. Because of these virtues, courts are reluctant to undo settled law. Creacy v. Indus. Comm'n, 148 Colo. 429, 366 P.2d 384, 386 (1961).

¶ 15 Still, courts may depart from a prior ruling, or overrule it, where sound reasons exist to do so. Nicholls v. People, 2017 CO 71, ¶ 29, 396 P.3d 675, 681. We will depart from our existing law only if we are clearly convinced that (1) the rule was originally erroneous or is no longer sound because of changing conditions and (2) more good than harm will come from departing from precedent. McShane v. Stirling Ranch Prop. Owners Ass'n, 2017 CO 38, ¶ 26, 393 P.3d 978, 984.

¶ 16 With these principles in mind, we turn to Rhodig.

C. The Rhodig Rule Embraces the Masters Approach for Encroachment Cases

¶ 17 Before deciding whether Rhodig should be overruled, we must first understand what Rhodig means. In order to understand what it means, it is helpful to evaluate the two prevailing approaches for determining the property rights of trees that have encroached on another's property. We can then see where Rhodig sits in historical context and what some of its more cryptic passages seek to convey.

¶ 18 While the division below saw Rhodig as part of the minority of cases rejecting what the division perceived as the common law majority rule for boundary cases generally (namely, that any tree straddling a boundary is joint property, Love, ¶¶ 22–23 ), we view the relevant split of authority somewhat differently. The common law rule regarding true boundary-line-tree cases, where the tree sits squarely on a property boundary with no evidence of migration, is not implicated here. See Dubois v. Beaver, 25 N.Y. 123, 126 (1862) (describing boundary-line trees as "trees deriving their nourishment from roots extending on both sides of the line, and with bodies so directly over the line, and necessarily on both sides of that line, that it could not be determined upon which side of the line the tree was originally planted"). In those cases, the tree is the joint property of the two adjacent property owners. See 1 Am. Jur. 2d Adjoining Landowners § 17 (2018) ("[A] tree standing on the division line between adjoining landowners is generally considered the common property of both landowners...."). This is not such a case. Instead, this case involves a tree from one property that grew and encroached on another. History reveals two approaches to determining ownership in these encroachment cases. We turn to those two approaches...