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Don’t Touch My Tree – Supreme Court Clarifies the Rule Between Adjoining Landowners

It is spring, the time when people get outside, work in the yard—and start fighting with their neighbors. Just in time, the Colorado Supreme Court issued an opinion, dated March 19, 2018, clarifying the circumstances under which a property owner may trim or remove a tree, or prevent his/her neighbor from doing the same.

Last spring this newsletter featured an article about the Colorado Supreme Court agreeing to review the case of Love v. Klosky. The Supreme Court has now issued its opinion in that case. At issue in Love v. Klosky was a catalpa tree that straddled the property line between two property owners in Denver’s Washington Park neighborhood. The Kloskys wanted to remove the tree, which shed branches, leaves, and seed pods. The Loves wanted to keep it, despite the fact that a significant portion of the tree had grown onto their side of the property line.

In reaching its ruling, the court engaged in a review of historic cases concerning the ownership of trees, going back so far as the case of Masters v. Pollie, an English case from the year 1620, which established the firmly-rooted principle that when a tree is planted on one person’s property and spreads its roots over time onto the lands of another, that tree remains the property of the person on whose land it was originally planted.

In contrast, the Loves urged that a tree that touches a common boundary becomes the joint property of both property owners, and therefore cannot be removed without the assent of each owner. The court rejected this notion, noting that “we know of no other context in which a transfer of real property occurs with no action on behalf of either party, and no intent to transfer the property interest.” Thus, a tree that happens to grow into one’s property is not necessarily the property of the person on whose land it sits.

In reaching that conclusion, the court left open the legal doctrine associated with so-called boundary trees. A boundary tree is one which is jointly planted, jointly cared for, and which is intended by the owners to act as a partition between adjoining properties. A decision to remove a boundary tree still requires the consent of both owners. However, there was no evidence that the tree in question in Love was intended to mark the boundary.

Last, the court affirmed the viability of the common law notion that a neighbor suffering property damage, such as root damage to a sewer line, from an encroaching tree retains the right to protect his/her interests. Thus, if a tree encroaches on another’s property, that person can seek to trim or remove the tree if it would constitute a nuisance.

But, to the dismay of the Loves, the tree remains the property of the person

on whose land it originally grew. And as a result, the catalpa tree may end up coming down. We have no word yet as to how much paper was consumed litigating the matter.

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