Autumn leaves

Autumn Leaves and the Changing Colors of the Law

Every year, for countless millennia, has brought the autumn change of seasons and the fall of millions and millions of beautifully colored leaves throughout our region.

Taking a drive up to the mountains now is usually described as glorious or breathtaking when you can see the fall colors in all their sublime shades of yellow, red and orange.

But, in suburbia, it also spells time for a big chore, depending on the size of your yard, and the amount of trees.  These leaves all eventually turn brown, and blanket everything. 

In years past, leaves were not such a big deal. People didn’t have perfect gardens and lawns. Leaves everywhere were expected. It was a more relaxed time, with priorities given to perhaps more important things.

Yet, somehow, the autumn leaf has found a way into our everyday lives, and has been both a colorful friend, a reminder of seasonal holidays, of wishes and dreams drifting away, and even a catalyst to mischievous things.

With such a symbolic and tangible presence, it’s no wonder that the law has had to grapple with these colored pixie-like discards. 

Make no mistake about it, leaves can cause big trouble if left to their own devices.

Let’s go back to 1875, when New Jersey was far more rural, and see what the perennial autumn armada of leaves was up to then.

In those days, steam was king on the railroads; and fiery sparks easily caused fires as they spewed from the locomotive’s smokestack.

In one case, those sparks caused a fire when they kindled dry leaves blown onto railroad property from an adjacent piece of private property. The ensuing fire damaged the adjacent property by burning fences and trees.

The plaintiff sued the Delaware, Lackawanna and Western Railroad Co.

The plaintiff charged:

“And thereupon it became the duty of the defendants, when said locomotive engines were being propelled along said railroad track, to preserve and keep the said strips of land in such a condition that fire should not be occasioned by reason of the hot ashes, burning coals, and other igneous matter falling and settling thereon from out of the said locomotive engines, and to take all necessary precautions to prevent any fire which might be occasioned on said strips from extending to and burning the said sprouts, wood, timber, and fences on the said last mentioned track of the said plaintiff.”

Abraham D. Salmon v. The Delaware, Lackawanna and Western Railroad Company, 38 N.J.L. 5 (Sup. Ct. N.J. 1875).

The railroad defended itself by blaming Mr. Salmon and those darn leaves:

“[T]he lands of the plaintiff, adjoining the railroad, were covered with living, growing trees, saplings and bushes,… which annually produced and shed great quantities of leaves;” that the plaintiff, “during all that time, took no care of or in regard to said leaves, and did nothing whatever to prevent them from blowing and drifting from the said lands of the said plaintiff to, over and upon the said railroad track of the said defendant, but permitted them to be and remain where they fell, on his said tracts of land, to there become dry and inflammable, and then to be from thence, by the winds, from time to time, driven, carried and thrown from the said lands of the said plaintiff to and upon the said lands and railroad track of the said defendant, and in such manner that said leaves formed a continuous line of dry, combustible matter, extending from the said lands and railroad track of the defendant to the said lands of the said plaintiff, and that said leaves, “While the said defendant was using its said railroad, and its locomotive engines thereon, in a lawful and careful manner, accidentally and unavoidably caught fire,” and thence the injury complained of.” Id. at p.10.

Well, there you have it. Who was to blame? The railroad, with its fiery locomotives? Or the landowner, who let his leaves blow all over the place?

This was the wisdom of the court, in dismissing the railroad’s defense:

“This plea, it is manifest, demands for its support the concession, that the law requires a man to alter the natural conditions of his property, and to control, in some degree, the operation of the laws of nature with respect to such property, in favor of the owner of the adjacent lands. But this concession, I think, cannot be made.

“In the absence of special legislation, a man does not become a wrong doer by leaving his property in a state of nature.

“If water falls from the clouds upon its surface, the owner is not obliged to counteract the law of gravity in order to prevent such water from flowing on to the adjacent land; or if the soil becomes disintegrated by the action of the heat, he is under no duty to prevent the dust thence arising from being carried through the air into the house of his neighbor.

“Such results are purely sequences of natural causes, and, like all other effects of the vis major, must be submitted to; they cannot, in themselves, form any ground for a legal complaint…

“This plea charges that the plaintiff did not prevent the leaves falling from his trees, from being carried by the wind to the land of the defendant, but it altogether fails to show that he was under any legal obligation so to do.

“If the law annexed such a condition as that to the ownership of land, an action would lie for every leaf that should be blown by the wind from the trees upon such land to the neighboring property.

“But there is no such obligation known to the law. All land is subject to the servitude of receiving the leaves brought to it in the course of nature, and, as a compensation, can dispose of its own leaves in the same manner.

“The consequence is, there was no negligence in the plaintiff’s allowing the leaves in question to be carried to the roadway of the defendant, and that being so, it follows that, being on the land of the defendant rightfully, it became its duty to remove them when it desired to use fire on its land under dangerous conditions.” Id. at p. 12. (emphasis supplied).

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So, we can see that leaves, left to their own devices, can be fuel for fires and catalysts for lawsuits.

But the line that rings most poignantly to me is “a man does not become a wrong doer by leaving his property in a state of nature.”

 Wow! That is so pure and straightforward. 

After taking an informal poll of several towns in North Jersey, I can tell you the color of that wonderfully clear maxim has turned a little yellow.

Every town now boasts ordinances requiring the cleanup of autumn leaves. They tell you where to put them, how to bag them, why they are dangerous, and many other picayune things.

Maybe that is why people look so fondly back on the good old days, when you didn’t need rules for leaves, which should blow freely on crisp winds. 

Another case in 1938 involved a car accident in Bergen County where a homeowner had a landscaper make a fire to burn her leaves, (now barred by statute in New Jersey).

This is a case of intentional action of setting fire to the leaves, and not the result of a “natural” process.

The fire obscured the road. A driver stopped to ask for directions, and another car, whose driver could not see the parked car due to the smoke, plowed into the back of the stopped car, killing the second car’s driver and injuring his wife and child.

There, the Supreme Court of New Jersey found that the homeowner was liable, under a theory of concurrent causes emanating from negligence:

“As to the fire itself: we think there was evidence from which the jury could find that it was negligent to build and maintain a fire causing a thick smoke which would drift across the road and obscure vision. In Davenport v. McClellan, 88 N.J.L. 653, 654, the Court of Errors and Appeals characterized a fire in the street as a nuisance.

“As to the stopped Mackay car being the proximate cause, and the smoke only secondary, we consider that it was a case of two concurring causes and two tort feasors, and that both causes can properly be called proximate.” Lambert v. Emise, 120 N.J.L. 164 at 166; 199 A. 44 at 45 (Sup. Ct. N.J. 1938).

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So the law wisely distinguishes the different elements of causation in order to apportion responsibility fairly.

Interestingly, if a modern train set fire to leaves, the result would probably still be the same as that old case, despite the town ordinances.

Town or municipal ordinances, as a matter of state law, do not create a duty in tort or resultant liability.

In effect, unless negligence or intentional conduct is determined by the usual standards, that same landowner today would probably prevail against the railroad.

Ah, a little green and deeper reds and oranges are still in those leaves.

The law, in many ways, is just like those leaves, with many shades of meaning to apply to various situations.

So, just as when you look at any one leaf, you don’t see the whole tree, with the law you must see all its colors to get the whole picture.

Perhaps everyone should contact their local public works department to find out exactly how they should be disposing of leaves because each and every town is different.

Knowing the correct way to dispose of your leaves will help you avoid getting a summons or having to do more work to get rid of your leaves.

Robert Ricco, an attorney admitted to practice in New Jersey and New York, lives in Bergen County. He welcomes questions from readers about legal issues affecting everyday life in suburbia. This column is not intended to be a comprehensive summary of recent developments in the law nor is it intended to provide legal advice or to render a legal opinion. Readers are advised to consult their own attorney for legal advice.