COLORADO COURT OF APPEALS 2016COA131 

Court of Appeals No. 15CA1505 

City and County of Denver District Court No. 15CV32088 

Honorable Morris B. Hoffman, Judge 

Keith Love and Shannon Love, 

Plaintiffs-Appellants, 

v. 

Mark Klosky and Carole Bishop, 

Defendants-Appellees. 

JUDGMENT AFFIRMED 

Division I 

Opinion by JUDGE TAUBMAN 

Freyre, J., concurs 

Dailey, J., specially concurs 

Announced September 8, 2016 

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 
1 

¶ 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, 93 P. 383, 383-84 

 

1 Bishop initially purchased the property, and Klosky and Bishop 

later married. Although both briefs refer to Klosky and Bishop as 

“the Bishops,” because Klosky’s name appears first on the case 

caption, we refer to Klosky and Bishop as “the Kloskys” for 

readability. 
2 

(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 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, 
3 

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 
4 

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, 
5 

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 
6 

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. 

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 closing argument 

about the evidence are not a substitute for a transcript and record. 
7 

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 Northstart 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. 

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 
8 

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. 

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. 
9 

¶ 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). 

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, 
10 

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 extends into his or her 
11 

land if that would thereby injure the tree. Scarborough, 93 P. at 

383. A court may issue an injunction upon the complaint of a 

landowner against the adjoining landowner to prevent the 

destruction of a boundary tree. Harndon, 100 N.W. at 330. Trial 

courts have broad discretion to enter such injunctions and can 

modify them to suit the facts and circumstances of each case. 

Robinson, 32 A. at 942. For example, the court may permit a 

landowner who wishes to cut the tree down to prune the tree to 

remove any dangerous limbs or may provide such other relief as 

deemed reasonable. See Ridge, 520 N.E.2d at 984. 

¶ 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 court 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 
12 

Rhodig decision, courts in eight jurisdictions have decided 

boundary tree cases. Of those eight courts, only two have agreed 

with Rhodig. Of the remaining six which have adopted the majority 

rule, courts in two jurisdictions, Illinois and Washington, have 

criticized the Rhodig decision. The Illinois case, Ridge, criticized 

Rhodig for misinterpreting the cases upon which it relied, and the 

Washington case, Happy Bunch, asserted that Rhodig’s policy was 

unsound because the Rhodig court created a new theory of adverse 

possession. Happy Bunch, 173 P.3d at 965. 

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 tree. 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 
13 

other portion shall not destroy the tree.” Id. Weisel thus can be 

interpreted as holding that an agreement or course of conduct can 

give one party a protectable interest even if the tree is not actually 

on a boundary line, but the decision does not hold that such an 

agreement is required when a tree is actually on the boundary of 

two adjoining properties. 

¶ 28 Likewise in Hancock, 170 S.W. at 409, as in Weisel, the court 

held that an agreement between property owners gave them coownership rights, but the 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 
14 

or some of the maintenance of the tree, including raking leaves and 

pods and trimming the tree’s branches. 

¶ 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 C.A.R. 35(e) (stating that an opinion 

may be published when it “directs attention to the shortcomings of 

existing common law”). See People v. Theus-Roberts, 2015 COA 32, 

¶¶ 41, 47, ___ P.3d ___, ___ (Berger, J., specially concurring) (writing 

“separately to express my concerns” and recognizing that while the 

court is “bound by the supreme court’s prior decisions,” “I believe it 

is important to note how much time has elapsed since the supreme 

court last visited” the subject of reliability of eyewitness 

identification); Harner v. Chapman, 2012 COA 218, ¶ 3, 350 P.3d 

303, 304-05 (respectfully urging the supreme court to address the 

continued viability of Weiss v. Axler, 137 Colo. 544, 551, 328 P.2d 

88, 92 (1958), regarding the burden of proof in res ipsa loquitur 

cases in light of CRE 301), rev’d, 2014 CO 78, ¶ 18, 339 P.3d 519, 

523-24 (following the Court of Appeals suggestion, holding Weiss
15 

was wrongly decided and, accordingly, reversing); People v. 

Stackhouse, 2012 COA 202, ¶ 33, ___ P.3d ___, ___ (Gabriel, J., 

specially concurring) (“I believe that this case provides an 

appropriate vehicle to allow our supreme court to reconsider 

Anderson [v. People, 176 Colo. 224, 227, 490 P.2d 47, 48 (1971)], in 

light of developments in the law in the decades since that case was 

decided [regarding waiver of claim that the right to public trial was 

violated].”), aff’d, 2015 CO 48, ¶ 33, ___ P.3d ___, ___; People v. 

Roldan, 353 P.3d 387, 391 (Colo. App. 2011) (Bernard, J., specially 

concurring) (writing “separately to express my hope that our 

supreme court will review . . . whether [Colorado’s] strict remedy of 

automatic reversal . . . should be replaced by a remedy based on 

harmless error analysis”), rev’d, 2014 CO 22, 322 P.3d 922 (citing 

People v. Novotny, 2014 CO 18, ¶ 27, 320 P.3d 1194, 1202). 

¶ 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 C.A.R. 8. 

IV. Conclusion 

¶ 32 The trial court’s judgment is affirmed. 
16 

JUDGE FREYRE concurs. 

JUDGE DAILEY specially concurs. 

 
17 

 JUDGE DAILEY, specially concurring. 

¶ 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 decided. 

¶ 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 so. 

¶ 35 Pointing out a shortcoming in the common law may be a 

compelling reason. Cf. C.A.R. 35(e) (stating that a court of appeals 

opinion may be published when it “directs attention to the 

shortcomings of existing common law”). But a simple disagreement 

about whether the case was rightly decided is not. See Randall v. 

Sorrell, 548 U.S. 230, 244 (2006) (“Departure from precedent is 

exceptional, and requires ‘special justification.’” (quoting Arizona v.

Rumsey, 467 U.S. 203, 212 (1984))); People v. Blehm, 983 P.2d 779, 

788 (Colo. 1999) (“[A] court will follow the rule of law it has 
18 

established in earlier cases, unless clearly convinced that the rule 

was originally erroneous or is no longer sound because of changing 

conditions and that more good than harm will come from departing 

from precedent.”) (emphasis added); see also Alleyne v. United 

States, 570 U.S. ___, ___, 133 S. Ct. 2151, 2164 (2013) (Sotomayor, 

J., concurring) (“Of course, under our doctrine of stare decisis, 

establishing that a decision was wrong does not, without more, 

justify overruling it.”); Mitchell v. W.T. Grant Co., 416 U.S. 600, 636 

(1974) (Stewart, J., dissenting) (“A basic change in the law upon a 

ground no firmer than a change in our membership invites the 

popular misconception that this institution is little different from 

the two political branches of the Government. No misconception 

could do more lasting injury to this Court and to the system of law 

which it is our abiding mission to serve.”); People v. Novotny, 2014 

CO 18, ¶ 25 (“Among the kinds of considerations we and the United 

States Supreme Court have identified as impacting a decision to 

depart from prior precedent are the practical workability of that 

decision; the extent to which a departure would work a hardship or 

inequity on those who have relied on and ordered their behavior 

around the prior ruling; and, importantly, whether the principles 
19 

upon which the ultimate holding is premised, or related legal 

principles, have themselves developed in such a way as to leave the 

prior ruling without support.”). 

¶ 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 unusual 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 precedent. 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. Tennesee, 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 
20 

reliance on judicial decisions, and contributes to the actual and 

perceived integrity of the judicial process.”). 

¶ 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 

period (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.