Neighborly Disputes of the Arboreal Variety: Encroachment Trees

Imagine that you have a neighbor with a splendid, towering cottonwood tree that sits so close to your property line that roots and branches actually cross over into your property.  In the warmer months, the tree provides your yard with a lovely bit of shade, and you build a small stone patio so that you can enjoy your yard in the respite of the tree’s umbral aegis. These circumstances proceed uninterrupted for a decade, until your neighbor sells their property and new property owners move in. These new owners, however, decide they don’t like the tree and tell you one day as you chat over the fence that they intend to chop the tree down.  You ask them to reconsider, but they are resolute.  Do you have any legal recourse to prevent the impending tragedy?

            As you may have guessed, the answer is “probably not.”  As with most things in the law, though, the devil’s in the details.  Your ability to block the proposed felling depends on your possession of a cognizable legal interest in the tree.  The leading cases in Colorado regarding the allocation of legal interests in such trees are Rhodig v. Keck, 421 P.2d 729 (Colo. 1966) and Love v. Klosky, 413 P.3d 1267 (Colo. 2018).  The Supreme Court of Colorado has decided that trees, in these border-line cases, fall into one of two categories: so-called “true boundary line trees,” and “encroachment trees.” “True boundary line trees” are “trees deriving their nourishment from roots extending on both sides of the [property] line, and with bodies so directly over the line, and necessarily on both sides of that line, that it could not be determined upon which side of the line the tree was originally planted.”  DuBois v. Beaver, 25 N.Y. 123, 126 (1862).  “Encroachment trees,” on the other hand, are simply those that “began life entirely on one person’s property only to migrate partially to another’s.”  Love, 413 P.3d at 1272.

            If your tree is a “true boundary line case,” congratulations, you and your neighbor are tenants-in-common with respect to the tree, meaning you have a legally cognizable property interest in the tree.  If, however, the locus of the tree’s inception is not so indeterminable, such as in our hypothetical, then the tree is simply an “encroachment tree.”  In such circumstances, the owner of the tree is the owner of the land on which the tree was planted.

            But let’s assume slightly different facts than those above.  Assume, instead, that, years ago, your neighbor came to you and asked if you’d like to split the cost of a sapling to be planted near the joint property line, because he wanted some shade and thought you might enjoy that as well.  You agree, and you and your neighbor jointly plant the sapling.  Or, imagine that you neighbor plants the tree himself, but, recognizing the benefit you will derive from it, you offer to help him maintain the tree, and he accepts.  Or, imagine that, perhaps, at this time, your properties were not divided by a fence, and you and your neighbor agreed to use the tree as a landmark that separated where one party’s property ended and the other’s began, only to later learn that the tree was in fact planted entirely within your neighbor’s property.

            Under those circumstances, though the tree is technically an “encroachment tree” located entirely on your neighbor’s property, you nevertheless are a tenant-in-common with respect to the tree.  However, the burden will be on you to prove these circumstances, so save receipts, photos, e-mails, or anything else that might suggest the requisite circumstances exist!

Submitted by: Nathaniel Gaffney