Court Takes Rare Look at Age-Old Property Dispute

Colorado Supreme Court upholds precedent in encroaching tree lawsuit

The Colorado Supreme Court looked back nearly 400 years and across the pond to a pair of property law cases from 17th century England in deciding whether to overturn one of its own precedents from 1966.

The court ultimately did not find a reason to reverse precedent in a lawsuit over a tree crossing the boundary line between two properties. In Love v. Klosky, the court ruled a tree planted on one property that grows to encroach on a neighboring property belongs to the owner of the property where the tree grew. The decision followed a ruling from 1966, Rhodig v. Keck, which no subsequent Colorado case has interpreted or cited until now.

Under the Rhodig precedent, a tree spanning two properties is jointly owned only when it is is jointly planted, cared for or serves as a property divider. The case did not apply the rule to trees serving as true property boundary lines where it’s not possible to tell whose property they grew on.

In Love v. Klosky, Keith and Shannon Love filed suit to prevent Mark Klosky and Carole Bishop from cutting down a 70-foot tree growing mostly on the Klosky property. The trial court found the tree was first planted on the Klosky property, though it existed on the land before they purchased it. The court also found the Loves had not met their burden of proof for joint ownership interest in the tree and dismissed the Loves’ claims.

To read this story and other complete articles featured in the March 26, 2017 print edition of Law Week Colorado, copies are available for purchase online