Local councils seem to be fond of trees. Apparently, so much so that allowing them to disable public infrastructure is uncontroversial. Until it causes a death.
The sun had set about half an hour before Mary Fillipas got off the bus in Station Street, Burwood on 8 May 2017. The bus stop was adjacent to Talbett Street. Fillipas, aged 75 years, was slowly crossing Station Street just after the crest of the road. A driver approaching from the other side of the crest saw her in his headlights at the last minute and braked. He could not avoid hitting her. She died of her injuries some weeks later.
Police determined that the driver bore no criminal liability for the death. The police noted that although there were two street lamps in the vicinity of the collision, a large tree blocked most of the light from one.
Mrs Fillipas’ death was investigated by the Coroner. In the investigation the local government body (Whitehorse City Council) submitted that street lighting in the area was adequate and that the tree was healthy and maintained in line with legislation and appropriate standards. The Council and a number of other agencies also recommended moving the bus stop to the top of the crest to improve visibility of people crossing Station Street after getting off the bus.
The Coroner agreed with the proposal to move the bus stop. Her Honour also recommended the Council consider removing suitable trees to ensure overhead lighting was not affected.
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.