Love v. Mark Klosky & Carole Bishop, Court of Appeals No. 15CA1505
| Decision Date | 08 September 2016 |
| Docket Number | Court of Appeals No. 15CA1505 |
| Parties | Keith LOVE and Shannon Love, Plaintiffs–Appellants, v. Mark KLOSKY and Carole Bishop, Defendants–Appellees. |
| Court | Colorado Court of Appeals |
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 Defendants–Appellees
Opinion by JUDGE TAUBMAN
¶ 1 This case presents a novel question of standing: in the case of a tree straddling a boundary line, can the landowner with the larger portion of the tree on his or her property cut it down or can the landowner with the smaller portion of the tree on his or her property insist that the tree remain standing?
¶ 2 This appeal involves the competing rights of adjoining landowners—plaintiffs, Keith and Shannon Love (the Loves), and defendants, Mark Klosky and Carole Bishop (the Kloskys)—as to a tree at least seventy years old whose trunk straddles their common boundary.1 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 , 7 Cal.App. 39, 93 P. 383, 383–84 (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.
¶ 5 As described above, 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, they bear long fruits that resemble slender bean pods. The tree is seventy to ninety years old.
¶ 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' property. 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 explained that it wanted to save the tree but, bound by the minority rule in Rhodig , must allow the Kloskys to cut it down:
[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 the 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) ().
¶ 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.
¶ 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) ).
¶ 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 trees are held in common by both landowners only if they were jointly planted, jointly cared for, or were treated as a partition between the adjoining properties. Rhodig , 161 Colo. at 340, 421 P.2d at 731.
¶ 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 closing argument about the evidence are not a substitute for a transcript and record. Therefore, we have no opportunity to review the conflicting evidence that the parties presented at trial concerning the actions taken by the parties to care for the tree. See Northstar Project Management, Inc. v. DLR Group, Inc. , 2013 CO 12, ¶¶ 13–17, 295 P.3d 956, 959–60.
¶ 18 The trial court held that the fact that the Loves cut a branch 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 complete 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.
¶ 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 be reconsidered by the supreme court and (2) the court's opinion in Rhodig was based on a misreading of a Nebraska case on which it relied. We agree with the Loves that the supreme court may wish to reconsider Rhodig . Before we address the Loves' two contentions, we examine the Rhodig decision more closely.
¶ 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.
¶ 21 Notably, two justices dissented in Rhodig and would have instead applied the majority rule. Id. at 341, 421 P.2d at 731 (Frantz, J., dissenting).
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