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    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.

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 (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,




                                    2
 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




                                    3
  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,


                                     4
  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


                                        5
  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.


                                      6
  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


                                     7
  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.




                                     8
¶ 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,


                                       9
  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


                                     10
  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


                                   11
  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


                                     12
  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 co-

  ownership 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




                                     13
  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


                                     14
  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.


                                     15
JUDGE FREYRE concurs.

JUDGE DAILEY specially concurs.




                         16
       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


                                     17
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


                                   18
  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




                                     19
  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.




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