Nobody asked the tree what it thought about the matter.
In about 1930 a catalpa tree began to grow in the Washington Park neighbourhood of Denver. Eighty years of subdivisions and land transfers later, the tree was on the boundary of blocks owned by the Loves and the Kloskys (sadly, the case does not disclose that the blocks were called Blackacre and Whiteacre, which would have been rather cool). Specifically, 74% of the trunk was on Klosky’s land and 26% on Love’s land. The tree dropped leaves, braches and seed pods on both properties. Klosky decided to cut the tree down. Love objected and obtained a restraining order pending an injunction preventing Klosky felling the tree. The Loves’ application was dismissed by the Denver District Court, although in words many garden lovers would understand Judge Hoffman said –
[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.
The Loves appealed to the Colorado Court of Appeals, which dismissed their application: Love v Klosky, 2016 COA 131. They appealed to the Supreme Court of Colorado.
The Supreme Court considered its earlier decision in Rhodig v Keck, 421 P.2d 729 (Colo., 1966). Rhodig was found to have embraced the very old English case of Masters v Pollie, 2 Rolle 141; 81 ER 712 (Kings Bench, 1620). That case had found that in a case like the present, where the tree encroached on anothers property, the tree belonged to the owner of the land where the tree was planted. Rhodig had added a gloss that where such a tree had been jointly planted, jointly cared for, or treated as a boundary between properties, it could become joint property between the neighbours. This was not the case here. There being no case for overturning Rhodig, Klosky was entitled to remove the tree.